Mill v Adgemis Investments Pty Ltd
[2022] VCC 1892
‘321.
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| GENeral List |
Case No. CI-18-04301
| RODNEY JAMES MILL | Plaintiff |
| v | |
| ADGEMIS INVESTMENTS PTY LTD | First Defendant |
| and | |
| LEEDA PROJECTS PTY LTD | Third Defendant |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 September 2020 (when mediation ordered to be heard on that day), 22, 23, 24, 28, 29, 30 September 2020 and 3 October 2020 | |
DATE OF JUDGMENT: | 8 November 2022 | |
CASE MAY BE CITED AS: | Mill v Adgemis Investments Pty Ltd and Anor | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1892 | |
REASONS FOR JUDGMENT
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Subject:NEGLIGENCE AND/OR BREACH OF STATUTORY DUTY
Catchwords: Plaintiff fell from a roof cavity to the ground during the course of his employment with the first defendant suffering spinal injuries and psychological consequences – proceeding for “pain and suffering” and “pecuniary loss” damages pursuant to the provisions of the Workplace Injury Rehabilitation and Compensation Act 2013
First defendant sued in both negligence and breach of occupational health and safety regulations – initially the first defendant denied liability, but at the completion of the plaintiff’s evidence, admitted negligence and breach of the occupational health and safety regulations – allegations of contributory negligence on the part of the plaintiff still alive
Third defendant is a contractor who built the roof cavity (suspended ceiling) in 2008 – plaintiff sues the third defendant for breach of a duty allegedly owed by the third defendant as an occupier and/or negligence – the third defendant denies liability to the plaintiff and, in any event, alleges contributory negligence on the part of the plaintiff – in particular, the plaintiff alleges that the third defendant owed a duty of care, the scope of which involved it placing a sign on the removable panels of the false ceiling to warn any person not to enter the cavity (suspended ceiling) and/or warn the occupier of such risk of someone entering the cavity
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013; Occupational Health and Safety Act 2004; Occupational Health and Safety Regulations 2007 (Vic); Wrongs Act 1958
Cases Cited:Browne v Dunn [1893] 6 R 67; Salomon v A Salomon & Co Ltd [1897] AC 22; Parrish v Specialized Australia Pty Ltd (Rulings) [2020] VSC 15; Pierides v Monash Health [2017] VSC 426; Shell Pensions Trust Ltd v Pell Frischmann & Partners (a firm) [1986] 2 All ER 911; FGT Custodians Pty Ltd (Formerly Feingold Partners Pty Ltd) v Fagenblat [2003] VSCA 33; Sydney South West Area Health Service v Stamoulis [2009] NSWCA 153; Sorre v Ingman (1992) 57 SASR 469; Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 529; Victorian WorkCover Authority v Carrier Airconditioning Pty Ltd [2006] VSCA 63; Kulczycki v Metalex Pty Ltd [1995] 2 VR 377; Voli v Inglewood Shire Counsel (1963) 110 CLR 74; Wyong Shire Counselv Shirt (1980) 146 CLR 40; W B JonesStaircase & Handrail Pty Ltd v Richardson [2014] NSWCA 127; Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540; Vairy v Wyong Shire Council (2005) 223 CLR 422; New South Wales v Fahy (2007) 232 CLR 486; Jones v Bartlett (2000) 205 CLR 166; Tweed Shire Council v Hancomatic Music Pty Ltd [2007] NSWCA 350; Fox v Wood (1981) 148 CLR 438; O’Donnell v Reichard [1975] VR 916; Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; Jones v Dunkel [1959] HCA 8
Judgment: Judgment for the plaintiff against the first defendant. Judgment for the third defendant against the plaintiff.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Ingram QC with Mr E Makowski | Arnold, Thomas & Becker |
| For the First Defendant | Mr W Middleton QC with Ms R Kaye | Lander & Rogers |
| For the Third Defendant | Ms G Gray | Sparke Helmore |
Table of Contents
INTRODUCTION......................................................................................................................... 1
THE EVIDENCE.......................................................................................................................... 9
(a)The evidence of the Plaintiff – his examination.............................................................. 9
(b)The cross-examination of the Plaintiff by Senior Counsel for the First Defendant 23
(c)The cross-examination of the Plaintiff by Counsel for the Third Defendant............ 48
(d)The re-examination of the Plaintiff by Senior Counsel for the Plaintiff..................... 72
THE EVIDENCE OF MR EDWARD DOHRMANN.............................................................. 82
(a)The reports of Mr Dohrmann........................................................................................... 82
(b)The examination of Mr Dohrmann by Senior Counsel for the Plaintiff................... 102
(c)The cross-examination of Mr Dohrmann by Junior Counsel for First Defendant. 102
(d)The cross-examination of Mr Dohrmann by Counsel for the Third Defendant..... 110
(e)The re-examination of Mr Dohrmann by Senior Counsel for the Plaintiff.............. 125
THE EVIDENCE OF THE WORKSAFE INSPECTORS (whose reports were tendered by the Plaintiff)................................................................................................................................... 131
THE EVIDENCE OF MR FRANK ROSSI, A DIRECTOR OF THE THIRD DEFENDANT 134
(a)The examination of Mr Rossi by counsel for the Third Defendant......................... 134
(b)The cross-examination of Mr Rossi by Senior Counsel for the Plaintiff................ 151
(c)The cross-examination of Mr Rossi by Junior Counsel for the First Defendant... 158
THE DETERMINATION OF LIABILITY ISSUES............................................................... 159
QUANTUM............................................................................................................................... 186
(a)Further evidence of the Plaintiff re quantum.............................................................. 187
(b)The cross-examination of the Plaintiff by Senior Counsel for the First Defendant re quantum........................................................................................................................... 195
(c)The re-examination of the Plaintiff by Senior Counsel for the Plaintiff re quantum 214
THE EVIDENCE OF MS ISIS MARIE MILL....................................................................... 218
(a)Her examination by Junior Counsel for the Plaintiff.................................................. 218
(b)The cross-examination of Ms Mill by Senior Counsel for the First Defendant..... 220
(c)The re-examination of Ms Mill by Junior Counsel for the Plaintiff.......................... 222
THE MEDICAL AND LIKE EVIDENCE............................................................................... 223
THE EVIDENCE OF MR RUSSELL MILLER.................................................................... 230
(a)The examination of Mr Miller by Senior Counsel for the Plaintiff............................ 234
(b)The cross examination of Mr Miller by Senior Counsel for the First Defendant... 236
(c)The re-examination of Mr Miller by Senior Counsel for the Plaintiff....................... 243
THE EVIDENCE OF MR GARY BRUCE ALLAN............................................................. 243
(a)His examination by Senior Counsel for the Plaintiff.................................................. 243
(b)The cross-examination of Mr Allan by Junior Counsel for the First Defendant.... 248
(c)The re-examination of Mr Allan by Senior Counsel for the Plaintiff....................... 252
THE DETERMINATION OF QUANTUM ISSUES............................................................. 252
DAMAGES............................................................................................................................... 263
CONCLUSION........................................................................................................................ 265
HIS HONOUR:
1 INTRODUCTION
1In this proceeding, there is no issue that on 22 July 2014, Rodney Mill, who I shall refer to as “the plaintiff”, was working at the Zouki Cafeteria situated at The Royal Melbourne Hospital (“the premises”), installing soft pipe within a ceiling cavity of the premises, when a manhole gave way, causing the plaintiff to fall on a concrete surface, thereby suffering a variety of injuries, but in particular, a spinal injury requiring spinal surgery.
2The plaintiff initially issued proceedings against four defendants, but approximately a month or so prior to the commencement of the hearing, discontinued against two of those defendants, leaving the following defendants:
(a) his employer, Adgemis Investments Pty Ltd, which I shall refer to as the “first defendant”, alleging negligence on its part and/or breach of the Occupational Health and Safety Regulations 2007 (Vic); and
(b) a contractor, Leeda Projects Pty Ltd, which I shall refer to as the “third defendant”, in both negligence and/or the breach of duty said to be owed to the plaintiff by the third defendant, pursuant to s14B of the Wrongs Act 1958 (Vic).
3There is no issue that the third defendant performed works at the premises in 2008, involving, in particular, the construction of a false ceiling at the premises, from which the plaintiff fell.
4The plaintiff alleged the following Particulars of Negligence against the first defendant:
(a) failing to provide a safe system of work;
(b) failing to provide the plaintiff with any or any adequate or proper supervision;
(c) failing to provide a safe place of work;
(d) failing to train or properly train the plaintiff in relation to working safely from heights;
(e) exposing the plaintiff to a risk of danger or injury of which the first defendant knew or ought to have known;
(f) exposing the plaintiff to a risk of injury which could have been avoided with reasonable care on behalf of the first defendant;
(g) permitting and/or requiring the plaintiff to work in a dangerous manner;
(h) failing to inspect the manhole in order to ensure the same was in safe condition for the plaintiff to use and/or work in the vicinity of;
(i) permitting the manhole to be constructed in a state which was not safe for the plaintiff to use and/or work in the vicinity of;
(j) failing to provide any or adequate warning to the plaintiff that the manhole was not in a safe condition for him to use and/or work in the vicinity of;
(k) failing to properly inspect the manhole and/or have in place any or adequate system for the inspection or the manhole;
(l) failing to provide to the plaintiff any or any proper equipment;
(m) requiring the plaintiff to perform the work in the manhole in an unsafe manner;
(n) failing to repair or replace the manhole and/or to have any or any adequate system for the repair or replacement of the manhole;
(o) failing to perform any or any appropriate risk assessment in relation to the work;
(p) failing to have any or any proper system to protect against the risk of falling against the roof;
(q) failing to provide a scissor lift;
(r) failing to have any or any appropriate fall arrest system;
(s) failing to comply with the Regulations made pursuant to the Occupational Health and Safety Act 2004.
5Further, and in the alternative, the plaintiff alleges that the first defendant owed a duty of care under the Occupational Health and Safety Regulations 2007 (Vic) and, in particular, the following regulations were breached:
(a) Regulation 3.3.3, requiring hazard identification of a fall hazard;
(b) Regulation 3.3.4, requiring control of risks of fall hazards;
(c) Regulation 3.3.5, requiring the use of ladders as a control measure;
(d) Regulation 3.3.7, requiring the use of plant to control risks;
(e) Regulation 3.3.8, requiring review of risk control measures.
6The plaintiff further alleges, in relation to the third defendant, that it breached a duty said to be owed by it to the plaintiff pursuant to s14B of the Wrongs Act 1958, and/or was negligent. The plaintiff alleges the following Particulars of Breach and/or Negligence against the third defendant:
(a) failing to provide a safe system of work;
(b) failing to provide the plaintiff with any or any adequate or proper supervision;
(c) failing to provide a safe system of work;
(d) failing to have any or any safe work method statement for the project and, in particular, the plaintiff’s role in working in the roof;
(e) exposing the plaintiff to a risk of danger of injury of which the defendants, or one or other of them ought to have known;
(f) exposing the plaintiff to a risk of injury which could have been avoided with reasonable care;
(g) permitting and/or requiring the plaintiff to work in a dangerous manner;
(h) failing to inspect the manhole in order to ensure the same was a safe condition for the plaintiff to use and/or work in the vicinity of;
(i) permitting the manhole to be constructed in a state in which it was not safe for the plaintiff to use and/or work in the vicinity of;
(j) failing to provide any or any adequate warning to the plaintiff that the manhole was not in a safe condition for him to use and/or work in the vicinity of;
(k) failing to properly inspect the manhole and/or have in place any or adequate system for the inspection of the manhole;
(l) failing to repair and replace the manhole and/or have any or any adequate system for the repair and replacement of the manhole;
(m) constructing the manhole unsafely;
(n) failing to ensure the manhole could support the plaintiff;
(o) failing to have any proper system to protect the plaintiff from falling from the roof;
(p) failing to remedy the defective manhole in a timely fashion;
(q) failing to comply with the regulations made pursuant to the Occupational Health and Safety Act 2004;
(r) failing to give any adequate or adequate warning by way of a sticker or sign on the inside of access panels and/or the manhole and/or inside the false ceiling:
(i)signifying or alerting persons entering into the false ceiling via the access panel and/or manhole was dangerous and/or unsafe, and/or prohibited;
(ii)signifying or alerting persons that the access panel and/or the false ceiling was not trafficable and/or was not designed or intended to support the weight of a person.
7The plaintiff alleges that the negligence and/or breach of duty on the part of the first defendant and/or the third defendant caused the plaintiff to suffer injury, loss and damage. The plaintiff relies on the following Particulars of Injury:
(a) pain, tenderness and limitation of movement affecting the spine;
(b) musculoligamentous injury to the spine;
(c) injury to the cervical spine;
(d) fracture of the T4 vertebral body;
(e) thoracic spine injury necessitating posterior fusion at T2, T3, T4, T5 and T6 levels;
(f) post-operative scarring;
(g) injury to the right little finger;
(h) psychological injury, including anxiety and depression;
(i) production, aggravation and acceleration, deterioration and exacerbation of stroke injury.[1]
[1]At the beginning of the trial, Senior Counsel for the plaintiff made clear that no claim for pecuniary loss damages would be made beyond 30 May 2018, at which time the plaintiff suffered a left-sided stroke which had no relationship to either his fall on 22 May 2014 or any of the injuries suffered by him as a result of that fall. Such stroke rendered the plaintiff totally incapacitated for work.
8The plaintiff sought damages, including “pain and suffering” damages and “pecuniary loss” damages within the meaning of s325 of the Workplace Injury Rehabilitation and Compensation Act 2013.
9By way of a Defence delivered on 22 January 2019, those acting for the first defendant:
(a) admitted that the plaintiff was employed by the first defendant as a refrigeration mechanic as at 22 July 2014;
(b) admitted that the plaintiff submitted a Claim for Compensation, dated 6 August 2014, for injuries said to have occurred on 22 July 2014 to his “head, back, finger” when he “slipped fell through ceiling fell 3m. Hit the floor (concrete)”; and
(c) Denied breaching any duty of care it owed to the plaintiff (either in tort or contract), denied any breach of the Occupational Health and Safety Regulations 2007, and also denied that the plaintiff suffered injuries as a result of any breach of duty and/or regulation.
10Furthermore, the first defendant, in the alternative alleged contributory negligence on the part of the plaintiff, relying on the following particulars:
(a) failing to take reasonable care for his own safety;
(b) failing to properly assess the safety of the ceiling before undertaking the task at hand;
(c) failing to use the equipment provided to him – later this was made clear to mean in relation to using creep boards;
(d) failing to use his commonsense and experience.
11On 28 September 2020 – that is to say the fourth day of evidence – and at the completion of re-examination of the plaintiff, Senior Counsel for the first defendant sought leave to file a Further Amended Defence, in which liability was admitted,[2] and which contained a further two particulars of contributory negligence which were:
(e) failing to construct another or other access point in the ceiling if required in order to perform his duties without climbing into the ceiling cavity; and
(f) failing to report his concerns about entry into the ceiling cavity to Mr Adgemis.
[2]Both in negligence and in breach of Occupational Health and Safety Regulations
12Although, initially, Senior Counsel for the plaintiff objected to the addition of the Particulars of Contributory Negligence, the Court made plain that such amendments would be allowed, although the Court would permit the plaintiff to be recalled and examined in relation to the two areas raised by the two extra particulars of contributory negligence. Ultimately, Senior Counsel for the plaintiff did not make any application to recall the plaintiff and the amendments were made.
13By way of the third defendant’s Defence, delivered on 28 November 2018, the third defendant admitted that it was incorporated and, further, that it performed certain parts of the works, including the part of the works which involved the ceilings, by competent independent contractors – MCP Interiors Pty Ltd (“MCP”) to supply and install walls and ceilings as part of the works:
(a) It took reasonable care in selecting MCP to perform that part of the works. MCP was competent to perform those parts of the works;
(b) It denies that it was the occupier responsible for the condition of the premises;
(c) It denies that it owed the plaintiff a duty of care pursuant to s14B of the Wrongs Act 1958 to take such care, as in all the circumstances it was reasonable;
(d) The plaintiff, while on the premises, was not injured by reason of the state of the premises, or the things done, or omitted to be done, in relation to the state of the premises;
(e) It denies that any injury suffered by the plaintiff was caused by reason of a breach by the third defendant, or its respective servants or agents of the duty owed to the plaintiff pursuant to s14B of the Wrongs Act 1958, or due to their negligence or the negligence of the respective servants or agents for whom they are vicariously liable;
(f) It does not admit that the plaintiff had suffered injury, loss and damage; and
(g) Further, it alleges that, if it was negligent (which is specifically denied), and if any such negligence caused or contributed to any damage suffered by the plaintiff (which it does not admit), it then says the plaintiff is guilty of contributory negligence by:
(i)applying part or all of his weight to an access panel;
(ii)applying part or all of his weight to a part of the ceiling which was not intended to support his weight; and
(iii)failing to utilise an appropriate means of support.
2 THE EVIDENCE[3]
[3]At the end of the evidence, it was agreed amongst the parties that written submissions would be made in relation to the various issues raised during the proceeding. A timetable was constructed to file and serve the respective submissions. Furthermore, it was agreed between the parties that each party would provide a list of documents it would be relying on – most of these documents are contained in the respective Court Books of the parties and will be referred to as PCB (“Plaintiff’s Court Book”); D1CB (the First Defendant’s Court Book) and D3CB (“the Third Defendant’s Court Book”). A small number of documents were not contained within the Court Books and this is noted when any reference is made to any such document.
14It is convenient to split up the general issues of liability and quantum. The Court intends to initially set out the evidence pertaining to the alleged liabilities of each of the defendants and to determine whether the plaintiff has discharged his onus to establish the alleged liabilities. Of course, the first defendant has admitted liability in respect to negligence and breach of occupational health and safety duties, but the following issues are still alive:
(a) the allegations of contributory negligence by the first defendant against the plaintiff;
(b) the issue of liability in respect to the third defendant and, if established, the allegations of contributory negligence; and
(c) if both defendants are liable, what is a just and equitable contribution between such defendants.
(a)The evidence of the Plaintiff – his examination
15The plaintiff gave evidence that he was a sixty-three-year-old single man,[4] who lives with his eldest daughter who, at the time of the hearing, was thirty-eight years old, in his parents’ former home in Ashwood. The plaintiff’s other child, a younger daughter, who was twenty-five at the time of the hearing, lives with her partner elsewhere.
[4]Born September 1958
16The plaintiff has lived for some years at his parents’ home, and nursed his father there until he died in 2012, after which his older daughter largely nursed the plaintiff’s mother there until she died (that is, the mother) in 2014.
17The plaintiff attended school to age seventeen, leaving in Year 11 from Ashwood High School and thereafter worked as follows:
(a) on leaving school he worked at Coles in Oakleigh for about six months;
(b) he then worked for the Victorian Railways as an engineman and worked at the south Dynon yards at the bottom of Spencer Street for about five years; and
(c) the plaintiff then performed some delivery work and odd jobs over a number of years as well.
18In the early 1980s, the plaintiff developed an addiction to heroin and resided at Odyssey House from approximately July 1983 until January 1986. At that time, he was married, and his wife was also a heroin user as well. His wife died of an overdose in 1999. The plaintiff got back into heroin from about 1992 until 1999.
19During the time that the plaintiff used heroin he also contracted both Hepatitis B and Hepatitis C, for which he was given what was referred to as “advanced treatment”,[5] which led, according to the plaintiff, to those viruses being eliminated from his body.
[5]Transcript (“T”) 44, Lines (“L”) 15
20The father of the plaintiff had been a qualified mechanic and it was through him that the plaintiff learned the basics of working as a mechanic. In 1985, the plaintiff began work as a motor mechanic for Lance Dixon Mazda in Doncaster and remained there for about a year and then went on to Kew Mitsubishi, where he worked for about two years, until 1988.
21During the work with Kew Mitsubishi, the plaintiff suffered what was referred to as a “fairly minor spinal injury”, involving his neck, and for which he believes he was paid about $2,000 in compensation. His neck was treated conservatively and did not need any operations or injections, or anything like that.
22From 1989, the plaintiff increasingly had responsibility for raising his daughters, and in order to provide some financial income he did some odd jobs, and also during this time cared for his father. Also, during this time, he ran a second-hand antique store in Powelltown.
23The plaintiff described that prior to his father’s death he had done some part-time work for the first defendant, which was a local company. Initially, the plaintiff was involved in selling some microwaves and then started “doing up” washing machines and selling them to, presumably, Mr Adgemis, the principal officer of the first defendant. In particular, the plaintiff became involved in refrigeration mechanical work, and after that helped Mr Adgemis for a while, after which the plaintiff decided he wanted to “get into it”.
24The plaintiff commenced performing part-time work for the first defendant leading up to 2012, and in 2012, the plaintiff became full time, commencing his apprenticeship that year. The formal apprenticeship studies were undertaken at the Box Hill College of TAFE. The plaintiff agreed with the proposition put to him by his counsel that if he had not been injured, the plaintiff was looking to finish that apprenticeship in “2015, maybe in 2016”.[6]
[6]T46, L25-26
25Again, the plaintiff accepted the proposition put to him by his counsel, that the business of the first defendant was to supply and install coolrooms and refrigeration equipment and also to maintain those systems for customers.[7]
[7]T46, L27-30
26The plaintiff commented that although he was not qualified at the start, the skills that he had picked up from his father helped him be a refrigeration mechanic, as he had a basic knowledge of how to “pull things apart”.[8]
[8]T47, L1-4
27The plaintiff confirmed that the first defendant “got a job” at The Royal Melbourne Hospital and, more particularly, the Zouki Cafeteria, in the middle part of 2014. The plaintiff was on that site for two to three weeks prior to being injured and initially there had been also present onsite, Luke England, another employee of the first defendant, but after he went on holidays, the plaintiff was assisted by another apprentice called Brent.
28When queried as to what was being done at the Zouki Cafeteria, bearing in mind that the system was installed in 2008, the plaintiff responded that the system was “faulty”.[9] When queried as to what was wrong with it, the plaintiff stated:
A:“They basically had 50 fridges, there was over 50 of them, working off the one plant. So if they got a little leak, it would just keep going and going and going and there’s something like 60 to 80 litres. That gas is not very good for the environment. It is equivalent to burning 27 tonnes of wood, one litre, so you see it’s not a very nice gas and we will to - we were continually topping up the plant and we had to find out where the leaks were. We went over the plant many a time looking for leaks and we’d find the odd one or two, fix them and then the next week, there would be a couple more. The problem with that is because they have got 50 fridges running off one plant, when it starts to leak, it doesn’t all leak out all of a sudden like if you were on separate plants, it leaks out continuously. So a fridge with a leak will wind up damaging the whole system.
Q:I see. So the work couldn’t be put off?---
A:No, it couldn’t be put off.”[10]
[9]T47, L19
[10]T47, L20 ꟷ T48, L7
29When queried as to the overall plan to try and “stem this problem”, the plaintiff described how they would cut off a certain section and run them to the new plants. He described putting seven or eight of them up there, and there were other issues in the ceiling, and there were issues with the coolroom. In particular, the plaintiff described that wires were not installed properly and they “blew” on him. Such wires were installed through a hole in a purlin, which is a little bit of thin metal, and the wires were put through them, and there were no grommets or anything, and about three or four wires put through. While performing this work, the plaintiff moved some of the wires and “it shorted the whole thing out”.[11]
[11]T48, L20-21
30The plaintiff then described how he rang John Adgemis, the principal officer of the first defendant, at about 10.30 at night, and after describing the problem, the plaintiff asserts that Adgemis stated “[w]hoever’s done this should be crucified” and wound up by saying “[f]ix it, just fix it”.[12]
[12]T48, L23-25
31As a result of that conversation, the plaintiff pulled all the wires out of the holes and taped them all together, and just ran them straight down. When the plaintiff performed this work he was above the coolroom, that is to say, on the roof of the coolroom, and it is quite solid. This area is a different area to the false ceiling.
32Again, I refer to the evidence of the plaintiff when he states, when asked about the events leading up to the fall from the “false ceiling”:
A:“Yeah, yeah, although there’s part of the false ceiling that comes off the coolroom, but I didn’t have to walk on a ceiling or anything like that, or joists or anything like that because it was all coolroom and I could walk across the roof. When I was doing that, the job that got me the back fixed, it was about 8 o’clock at night. It was the last job on my plate. I tried very hard to get it through from one end. I tried extremely hard to get that pipe through, it wouldn’t go.
Q: What was the problem? Why wouldn’t the pipe go through?---
A:It hit things. There’s obstructions all the way along there. I’d try and lift it up to get it over there and it sagged down, it would just sag on me, because they were soft drawn, those pipes, they are not the hard drawn stuff, they are soft drawn and there’s two pipes joined together and yeah, they are more for air conditioners but they will do all right for refrigeration. They are the same size pipe and everything. The only difference is they are soft drawn instead of hard drawn.
Q:So when you couldn’t get them through, I think you mentioned to me the other day that there were things called noggins[13] and things like that?---
A:Yeah, there were all sorts of things in the way.”[14]
[13]Noggins were described as just bits of wood that go across the false ceiling
[14]T49, L5-L29
33The plaintiff then stated that he “had to go up into the ceiling” after trying “to do it from the edge”, which was not possible. By that he meant that he had to go into the false ceiling after finding that it was not possible to do the job from the edge of the false ceiling and, in particular, had to go up into the false ceiling, crawl on a beam, grabbing the soft pipes and dragging them along the false ceiling. In particular, the following evidence was given:
Q: “Just stop for a minute. By this stage you’re in the ceiling space?---
A: Yes.
Q:Had you received any instruction from your employer that you were not to access the ceiling space, whatever?---
A:No. He wasn’t there.
Q:But had you received any instruction that you were not to access the ceiling space?---
A:No.
Q:When you lowered the access panels or manholes, whatever you want to call them, were there any warning signs anywhere in any of the panels that you lowered warning you not to access the ceiling space?---
A:No.
Q:How many panels would you have lowered and worked through altogether?---
A:About five metres I had to crawl.
Q:Sorry, say that again?---
A:I had to crawl about five metres up from where I was and grab the pipes and just pull them.”[15]
[15]T50, L4-18
34When queried as to how many panels there were in the false ceiling that he accessed, the plaintiff originally said that was “very hard to tell. I didn’t count them”,[16] but when asked to give his best estimate, he stated “[p]robably about two or three panels”.[17]
[16]T50, L31 ꟷ T51, L1
[17]T51, L3-4
35The plaintiff was then questioned as to whether there were any warnings of any description on the inside of the panels as these panels were lowered down, to which he answered “[n]o”.[18]
[18]T51, L9-12
36In particular, the following evidence was given:
MR INGRAM:
Q:“Thanks, Your Honour. (To witness) Mr Mill, I think we got to the point where we’d established that when the panel was lowered, there was nothing on the inside of it, no writing or anything like that?---
A:No.
Q:What I want to know is, and I won’t put it in any precise formula, but if there had been writing in the inside of it to the effect that you shouldn’t enter the roof space in order to perform any work in there?---
A:Yes.
Q:How would you have reacted to such writing when you saw it?---
A:I wouldn’t have gone up there. I would have gone and put the other manholes in.
Q:Just explain that to us because I opened it that way. When you say other manholes, there were a few manholes in the roof already?---
A:Yeah. One was totally blocked with a machine, you opened it and you’re just looking at the bottom of the machine, for no reason, and that was one of the ones that was along further. I would have had to put in probably at least one more at a better spot, somewhere where I could grab the pipe and go like that and push it through, get up the other one and grab it, pull it.
Q:At what junctions or spaces apart would you have needed manholes to get the pipe fed through the whole of the ceiling cavity?---
A:I would have had to have gone down about four or five metres, down the row, and put it in there properly and get up, grab the pipe, pull it through, push it through. I would have been able to push it through from there but it was impossible to push it through from up the top.”
HIS HONOUR:
Q:“Can I ask you, Mr Mill, as I understand it, when you got there or when you were working on that day, you thought there were about three manholes, is that correct?---
A:Yeah, there was probably about that but most of them were blocked off.
Q:The next thing I was going to ask you, you said one was blocked off, was it more or just one?---
A:There was only one big one blocked off but the other one wouldn’t have gone anywhere near.
Q:But what you’re saying to me is that, it’s your belief that if you put in another manhole, one more manhole?---
A:Yeah.
Q:If you had put it, it’s probable that you would have been able to handle the piping from outside the area, is that correct?---
A:That’s correct.
Q:By that you mean, I think - so I understand it again – if there was another manhole where you say there was?---
A:Should be.
Q:Or should be, you would have been able to push the pipe a certain distance, go up to the next manhole, grab it and push it further along up to the next manhole and further along, that’s what you’re talking about, is it?---
A:I would have to get up one manhole, push it through and then I could get into the last manhole, the one that I fell through.”[19]
[19]T58, L12 ꟷ T60, L3
37The plaintiff was queried by his counsel as to whether he had permission from the first defendant, or from anyone else, to construct his new manholes in the false ceiling, to which the plaintiff stated:
“Where it was necessary. There was a couple of spots that I had to put them in but I didn’t have another manhole with me. I would have had to have stopped work and come back the next day with another manhole.”[20]
[20]T60, L7-11
38Again, when queried as to why he had put the other manholes in, the plaintiff said, in part, “[t]o gain access”.[21]
[21]T60, L13
39Senior counsel for the plaintiff then referred to various diagrams set out in the first report from Dohrmann Consulting, dated 7 November 2019.[22] In particular, reference was made to the following:
(a) Figure 6[23] ꟷ the plaintiff described that as a “new manhole they have put in” which was not there when he was working on the site;[24]
(b) Figure 7[25] ꟷ the plaintiff described Figure 7 as showing “my pipes going through that hole”. The plaintiff stated that this manhole had been installed since he was in the roof;[26]
(c) Figure 8[27] ꟷ the plaintiff described that figure depicting a manhole with a red circle around it. Furthermore, the plaintiff described it as showing the white pipe going over the black pipe, the white pipe being where he installed it.
[22]At pages 126-157 PCB
[23]At page 139 PCB
[24]T61, L10-15
[25]At page 140 PCB
[26]T61, L24-28
[27]At page 140 PCB (the bottom depiction)
40In particular, the following evidence was given:
Q:“When you installed it, were you working through a manhole or working in the ceiling?---
A:I was working in the ceiling because it wasn’t there. The pipes were, you know, five metres back
Q:Could you have installed refrigeration pipe without getting into the ceiling the way you’ve installed it there?---
ANo, you would have had to put in another manhole.
Q:Did your employer know that you were working in the ceiling to put the refrigeration pipe - - -.”
[Objection by Senior Counsel for the first defendant]
MR INGRAM:
Q:“Did Mr Adgemis see the work that you were performing in the ceiling cavity?---
A:No.
Q:Did you tell Mr Adgemis the work that you were performing in the ceiling cavity?---
A:No, because he knew where I was going. He knew that I was in the ceiling.
Q:How did he know that you were in the ceiling?---
A:Because that’s where most of the work was.
Q:How often did Mr Adgemis come on site?---
A:Once every two to three days.
Q:Did he suggest any other way that the work could be done, other than the way that you did it in the ceiling?---
A:No.
Q:Were you ever told by Mr Adgemis that you shouldn’t work from inside the ceiling?---
A:No.”[28]
[28]T62, L4-30
41The plaintiff was then referred to Figures 9 and 10.[29] In particular, the plaintiff was directed to the right side of Figure 9, where there was said to be something like a “big white python” coming down towards the bottom of the Figure and when identified by the plaintiff, he described that as “the pipe that I’ve dragged through”.[30]
[29]At page 141 PCB
[30]T63, L20
42The plaintiff gave evidence that he installed those pipes and, in particular, the following evidence was given:
Q:“How did you install those pipes?---
A:The method I said before, I crawl up there, grabbed them and crawled back.
Q:Could you have done it any other way than crawling into the ceiling cavity to do it?---
A:No.
Q:When you were crawling in the ceiling cavity, what did you crawl on?---
A:There’s a beam there.
Q:Can you tell us in relation to the yellow circle where the beam is?---
A:To the right … .
…
Q:And that’s the beam you were working from?---
A:Yes.
Q:Then if we go down to - sorry, just before I go any further, it’s said by your employer in their amended defence that you could have used crawl boards in this work space. First of all, can I ask you to respond to that assertion that crawl boards would have been an appropriate means to work in that area?---
A:Well, the crawl boards would be across the plaster and it would be just putting pressure on the plaster. I couldn’t join them to something that beams up - you know, up about that high and then go across to something, which I don’t even think there was anything at the end there, it just wouldn’t have worked.
Q:Just go back through that. The beam was an elevated beam?---
A:Yeah.
Q:Was there any other solid surface on the other side of the elevated beam that you could connect the crawl board to, other than a plaster or a like surface?---
A:Only a big piece of metal.
Q:That supported the false ceiling?---
A:Well, I don’t think it did, I think it supported the roof because it was very thick.
Q:Would the crawl board have been able to be used in that area?---
A:Well, I’d have to drill it into there and then I couldn’t - I’d just be able to crawl on it. I mean, you’re looking at 5mm thick of steel, that’s how thick the beams were.
Q:Would it have been a safe way to perform the work, to use a crawl board in that area?---
A:No, not really.
Q:Why not?---
A:Because it would wind up on the plaster.
Q:And if that happened?---
A:Then the whole plaster would fall in and there’s wires and all sorts of things across there.”[31]
[31]T63, L24 ꟷ T65, L7
43Leading up to his fall, the plaintiff was again referred to Figure 9[32] and the following evidence was given:
[32]At page 141 PCB
Q:“Perhaps I will approach it this way: before you fell, where was your left hand?---
A:My left hand was around the pipes, those red pipes there.
Q:Can you tell from that photograph which red pipe your left hand was around?---
A:Yeah, the big one.
Q:So that’s where the hand is now, that’s the big one?---
A:Yeah.
Q:Where were your feet?---
A:Feet was on the board there, the big the beam.
Q:So that bit of wood that we were talking about before, is that the bit of wood that your feet were on?---
A:No.
Q:Can you just show me the board that your feet were on?---
A:Well, it’s in the picture before that, you will see the white pipes on the beam there.
Q:Yes?---
A:That’s what I had my foot on.
Q:So the boards to the right of where the white pipes are in that photograph?---
A:Yeah, I had me feet up on there.
Q:And you had your left hand on the red pipe which is the one closest to you in the photograph?---
A:Yeah.
Q:And how were you holding yourself? What was your posture?---
A:I was crouched down, I had one hand around there. I was crouched right down because there wasn’t much room, I had one hand holding the pipe. The reason I fell is I turned around in the roof, because I’d been pulling up the pipes and then I went to turn around.
Q:When I turned around, I just put my hand on the manhole, which I didn’t think I was putting much pressure on. The thing crashed to the ground, I heard it crashing to the ground, and I went head over.”[33]
[33]T65, L26 ꟷ T66, L22
44When asked as to what “precise instruction” the plaintiff received from his employer as to the manner in which he should perform the tasks that he was performing at the time he sustained injury, the plaintiff replied “[n]one”.[34]
[34]T99, L12-17
45The plaintiff was further queried as to when Mr Adgemis did come onsite did he ever instruct the plaintiff to do anything differently to what he was doing when Mr Adgemis was present, to which the plaintiff stated:
“No, not really. He had a go at me working – not working off his plan and I showed him the big beam in me way and he went ‘Oh.’”[35]
[35]T69, L18-23
46The plaintiff gave evidence that crawl boards were in the plaintiff’s van, packed by him. Again, when queried as to whether he used, or attempted to use, the crawl boards onsite, the plaintiff stated:
“I had a look at the roof and realised I couldn’t put them in there, so I just had to do without them.”[36]
[36]T69, L29-31
47When asked to expand on the characteristics of the roof, which prevented him from using the crawl boards, the plaintiff stated:
“… it’s a flat ceiling, you’ve got nothing to attach them to. There’s one that side and on the left side there is nothing.”[37]
The plaintiff explained it was necessary to have two strong points for crawl boards to be utilised.
[37]T70, L5-6
48The plaintiff gave evidence that:
(a) he had never seen the document discovered by the first defendant entitled “Working from Heights Policy”, effective from 1 July 2014;[38]
(b) that he had never been trained by the first defendant in working from heights;
(c) that he had never seen the Adgemis Heights Safety Plan for the Zouki Cafeteria project;[39] and
(d) that he was given no training in relation to risk assessments;[40]
(e) when queried as to who was in charge of the work onsite leading up to his fall, the plaintiff stated: “I suppose I was”;[41] and when queried as to whether he was told that by Mr Adgemis, or just made that assumption, the plaintiff stated:
“Well, I was a second year apprentice and there’s a first-year apprentice.”[42]
[38]See page 1146 of D3CB (discovered by the first defendant)
[39]See document page 142 D1CB
[40]T72, L27
[41]T72, L29-31
[42]T73, L2-3
49The plaintiff was referred to a document headed “Health & Safety Review Checklist”.[43] That document contained various parts headed “Site Assessments” and “Working from Heights”. When queried as to whether he had ever seen such document or had been advised about undertaking a health and safety review checklist at the site, or, directed to that part of the document headed “Working from Heights”, the plaintiff answered “No”.[44]
[43] See document page173 D1CB
[44] T73, L16-21
(b)The cross-examination of the Plaintiff by Senior Counsel for the First Defendant
50Under cross-examination, the plaintiff accepted that basically the job was to run new pipelines for the refrigeration at the Zouki Cafeteria which involved about fifty fridges. The plaintiff accepted that he was provided equipment which included a face mask, goggles, overalls, ladders and, in particular, crawl boards.[45]
[45] T103, L3-10
51In particular, the following evidence was given about the use of crawl boards:
Q:“Were you instructed to use crawl boards?---
A:Not by - not that day.
Q:Generally speaking, were you given an instruction - - -?---
A:I was instructed where possible. It wasn’t possible to put it up there.
Q:I will come back to that but you were instructed to use crawl boards when you could?---
A:Yeah.
Q:Were you familiar with the use of crawl boards?---
A:Yeah.
Q:Had you used them before?---
A:Yeah.
Q:On how many occasions had you used them before?---
A:Only a couple of occasions.
Q:Was that whilst you were employed with the first defendant?---
A:Yes.
Q:And were they occasions where you accessed a ceiling?---
A:Yes.
Q:When you used them, could you describe to His Honour how you used them?---
A:You’d put them down between two joists and then you crawl over them.
Q:Is the object - they don’t affix themselves to any part of the ceiling area, do they? You have to move - - -?---
A:No, they are just boards.
Q:You have to move them along each time?---
A:Yeah.
Q:Is the purpose to displace your weight?---
A:Yeah.
Q:And do you put them under your legs?---
A:Yeah.
Q:Would you agree that the boards provided to you by Mr Adgemis were about 1.2 metres long?---
A:Yeah, they’d be somewhere around there.
Q:About 150mm wide?---
A:Yeah.
Q:And 50mm thick?---
A:Yeah.
Q:Something of that dimension, without being precise?---
A:That’s correct.
Q:And you had two of these in your vehicle?---
A:Yeah.
Q:And you’d been instructed to use them - - -?---
A:No.
Q:- - - when necessary. Not on this occasion you say, but when necessary?---
A:Yeah.
Q:And you’d used them when it was necessary?---
A:Yeah.
Q:And you were familiar with the use of them and how to use them?---
A:Yeah.”[46]
[46] T103, L11 – T104, L16
52The plaintiff also confirmed that he had an A-frame ladder and could work from a platform, being “scaffolding” which gave access to the ceiling. In particular, the following evidence was given:
Q:“I see. That was to give you access to the ceiling?---
A:Yes.
Q:In the general cafeteria area that wasn’t behind the counter, correct?---
A:Yes.
Q:And did you use that - was it a scaffolding that was on wheels or was it fixed?---
A:No, there’s four wheels on each side.
Q:And you could lock the wheels?---
A:Yes.
Q:And you used that over the main area where people would sit, with a table and chair?---
A:Yeah, that’s because the roof would come down because there were four screws holding each panel in and they would come down.
Q:Can you tell His Honour about the area behind the counter where the refrigerator is, what the dimension is of the space between the counter and the fridge? Could you suggest to you it’s something like 100cm, maybe 105cm?---
A:Between what?
Q:The fridge and the counter, the floor space where you put the A frame ladder?---
A:I put the A frame ladder, yeah. I put the A frame ladder down, it went up.
Q:Yes, but the floor space there, would that permit you to put the scaffold with four wheels on it in that area?---
A:No, not enough room. It’s too narrow.
Q:So the only way you could access that manhole is to put an A frame ladder there?---
A:Yeah.
Q:Was there any other sort of ladder, device, suitable to go into that space where that manhole was?---
A:No.
Q:For example, you couldn’t put in a safety net, a catch platform, a harness, any of those sorts of things?---
A:It would be a bit difficult.
Q:So what I’m putting to you in effect is, the only way you could access that particular manhole was with an A frame ladder?---
A:Yes, that’s correct.
Q:No other way of doing it?---
A:No.”[47]
[47] T104, L24 – T105, L25
53The plaintiff explained that the A-frame ladder was placed under one of the manholes in the false ceiling and the purpose of it being placed in that position was to enable the plaintiff to climb into the false ceiling. In particular, the following evidence was given:
Q:“Mr Mill, what were you doing with the A frame ladder when you put it behind the counter to position it in a place where it was underneath what we call the manhole or what is otherwise referred to as an access point, what was your purpose?---
A:To climb into it.
Q:Why did you want to climb into it?---
A:Because I had to get these pipes.
Q: Could you be a bit more explicit? You had to get some pipes, what?---
A:They were way down, about 4 metres away so I had to crawl in, grab the pipes and drag them up.”[48]
[48] T108, L20-30
54Counsel then referred the plaintiff to the first report of the expert witness, Mr Dohrmann (relied on by the plaintiff) dated 7 November 2019.[49] In particular, the plaintiff was referred to Figure 4 on page 138, after which the following evidence ensued:
[49] See report of Mr Dohrmann dated 7 November 2019 at pages 126-157 PCB
Q:“Mr Mill, do you see that figure 4 there which is showing the trap door from the manhole or the access point hanging down with the yellow arrow?---
A:Yes, that’s it.
Q:See where the ladder is? What I’m suggesting to you is that the floor space there between the fridge and the edge of the counter is about 105cm, would you agree with that?---
A:Yeah.
Q:And the distance from the ceiling to the floor is about 2.6 metres, not quite 3 but 2.6 metres, would that be about right in your view?---
A:Yeah, I reckon that would be about right.
Q:In addition – I’ll come back to that. See the trap door with the yellow arrow?---
A:Yes.
Q:Is that the position, do you say, of the manhole that you accessed prior to the fall?---
A:No.
Q:It’s got a whole lot of plaster work around it, you can just see it. You can see it better in some other photos?---
A:Yeah.
Q:Do you know why that is?---
A:No.
Q:In any event, did the trap door or the door to the manhole, did that operate in a fashion similar to that which is depicted in the photo?---
A:Yes.
Q:So did you have to - if you just scroll down to the next photo, please, Mr Tipstaff - you can see a little lever at the very bottom, in the middle bottom?---
A:Yeah.
Q:You had to turn that and it would just drop down, is that correct?---
A:Yes, that’s correct.
Q:And the picture of the manhole as we see it in the top photo, is that the same size manhole as the one that you accessed?---
A:It’s bigger than the one on the other page and that’s basically it. The existing manhole is 290 by 290.
Q:Yes. So is that bigger or smaller than the one that you had to deal with?---
A:I’ve got a much bigger one. You can’t even fit your shoulders into that one.
Q:Yes. So it’s much bigger and would you say it’s 350 by 350, would you say it’s 400 by 400; what sort of dimension would you put upon it?---
A:90 by 290. That’s what’s written here.
Q:No, but that’s what he says the existing manhole is. I’m asking you what your recollection is of the size of the manhole as at 24 July 2014?---
A:Yeah, it was bigger than that.
Q:Can you say by how much?---
A:About 500mm, yeah, about 500mm.
Q:Square?---
A:Yeah, it was pretty well square.
Q:From the point of view of the size, was it, by that very reason, inviting to you to go into it?---
A:It wasn’t inviting me.
Q:It wasn’t small in the sense that you knew you couldn’t fit, you could see that you could fit, could you?---
A:Yes, that’s correct.
Q:And there was nothing there to deter you from going in, such as we have discussed already, that is no warning sign, no tag or ticket indicating that it was not to be accessed?---
A:No.”
HISHONOUR:
Q:“Can I just ask, in relation to the trap door or the manhole door there, when you were standing on a ladder there and you used that lever, what happened, did the manhole just fall down on one hinge or something, did it? What happened? Can you answer that, Mr Mill?---
A:Yes.
Q:So what I want what to know is, if you want to undo the manhole cover and I can see in figure 5 a bit of a handle there, so you loosen that off or whatever, and then does the manhole drop down towards you standing on the ladder, does it?---
A:Yes, it’s hinged.
Q:Sorry?---
A:It’s hinged.
Q:Just on one side, is it?---
A:Yes, it’s got a hinge on one side.
Q:I see. So it still hangs on to the (indistinct) because it’s hinged on one side?---
A:I can’t hear you.
Q:Sorry. Can you hear me now?---
A:Yes
Q:When you undo that lever or whatever it is, the manhole cover drops down, being hinged on one side. So the manhole cover still stays connected to the false roof because it’s hinged on one side?---
A:That’s correct.”[50]
[50] T110, L17 – T112, L31
55The plaintiff accepted that the manhole did not impose any impediment or restriction into getting into the ceiling cavity and that he would have entered such a cavity in order to join up the pipes that he was threading through other parts of the ceiling.[51]
[51]T113, L2-8
56The plaintiff accepted that he knew he was going to encounter obstructions but thought any obstructions could be overcome by lifting the soft pipes but “unfortunately it was soft drawn it would just bend down again”.[52]
[52]T113, L11-14
57In particular, the following evidence ensued:
Q:“You’ve been there, I think you’ve said several times, about three weeks at this point?---
A:Yeah.
Q:When was it that you first determined that you couldn’t pull them, push them through without accessing the ceiling?---
A:Just before.
Q:So on the 24th?---
A:Yes.
Q:So did you ring up Mr Adgemis and say, ‘Look, we have even countered a problem here, what should we do’?---
A:No, because he wouldn’t tell us.
Q:He’s not in a position to tell you until you ring him, is he?---
A:No, but it’s strange that I’d ring him for that and not ring him for all the other things.
Q:Let’s just focus on this. At no point on the evening of the 24th, having encountered this difficulty, did you ring him and say, ‘We have got a problem here, what do we do’?---
A:No.
Q:You were asked a question yesterday at transcript - I’m sorry, I keep saying the 24th, it’s 22 May, is it - what I’m talking about?---
A:July.
Q:July, is it the 24th or the 22nd?
MR INGRAM:
A:22nd.
MR MIDDLETON:
Thank you.
(To witness):
Q:You were asked yesterday at transcript 50, line 6, ‘Had you received any instruction from your employer that you were not to access the ceiling space whatever?---
A:No, he wasn’t there.
Q:But had you received any instruction that you were not to access the ceiling space?---
A:No.
Q:You never informed him that you were going to access the ceiling space, did you?---
A:No, but I’d been in many other ceiling spaces and I hadn’t had to inform him about that either.
Q:That’s because you’d been provided with crawl boards to access ceilings in the past, is that right?---
A:Yeah, I’ve been given crawl boards but this was a particularly hard ceiling.
Q:Yes, but what I’m getting at is, when you got this difficulty, you didn’t speak to him about it?---
A:No.
Q:You said yesterday that you had been coming to this job over a period of time, and this is transcript 47, line 20 and following. You talk about 60 to 80 litres of gas and equipment of 27 tonnes and you had to top it up continually. Between 2012 and 2014, how many times had you been to this particular site for that purpose?---
A:About once a week.
Q:Seriously? So for the best part of two years you would go there once a week?---
A:Yeah, and put 20 to 30 litres in. And where were you required to do that, what part of the premises?---
Q:You go up the top on the roof, it’s like a courtyard roof, and there’s a plant there, the upstairs plant. You have to do it from that plant. On any of those occasions were you required to climb into the manhole from any part of the cafe?---
A:Not to fill up - not to just top it up.
Q:No, but - - -?---
A:When I go - - -
Q:Sorry, you go ahead?---
A:When I’m looking for leaks, I go everywhere.
Q:What I’m getting at is, on any of those occasions prior to this job starting, did you go into any of the manholes that were present at the cafe?---
A:Yes.
Q:Had you ever been into the manhole that you came to grief in?---
A:No.
Q:Which manholes had you been in and where were they in the cafe?---
A:Well, there’s a big one which was around in one of the offices which led up to the coolroom, I had to do a lot up there. There was another one down the back near the coolroom, there were a couple of little ones in other places. We went into everything - if we were looking for leaks, we went into everything.
Q:When you go to these manholes that you’ve spoken about, these other ones, do you in fact go into the roof, the ceiling itself?---
A:Yes.
Q:And did you use crawl boards when you did that?---
A:No, didn’t need them.
Q:Why was that?---
A:Because it was on a tin roof.
Q:I think we might be at cross-purposes. Did you access – I might say, that screen shot can go down now, Your Honour.”
HIS HONOUR:
A:“Just before you move on, I just want to clarify this. Mr Mill, you talked about initially moving in the refrigeration (sic) pipes?---
A:Yes.
Q:Did you do that by standing on the ladder, opening a manhole about 5 metres away, but still standing on the ladder, feed the pipe in or did you get in the recess at that time too?---
A:Where we fed the pipes, from the other end of the run there and it was up high. The thing was made like that and I’m feeding them down and I just couldn’t get them past the - - -
Q:I understand that, you couldn’t get them past but what I want to know, where (sic) you doing that with your upper body into the actual - - -?---
A:I can’t hear you.
Q:Were you doing that - - -?---
A:I can’t hear you.
Q:Can you hear me now?---
A:Yes.
Q:What I want to know is, when you started that job and had to feed these refridgeration (sic) lines into the false roof---?---
A:I still can’t hear you, you’re breaking up.”
MR MIDDLETON:
“That is so, Your Honour. Your Honour’s very poor on the audio.”
HIS HONOUR:
“Mr Middleton, I’ll let you go on (indistinct).”
MR MIDDLETON:
“I didn’t hear that, sorry, Your Honour.”
MR INGRAM:
Q:“I think the judge is asking Mr Mill, when you were first starting the job, were you feeding the pipe in without having to enter into the ceiling cavity or even at that point, did you have to put your body into the ceiling cavity to feed the pipe? I think that’s what His Honour’s asking.”
HIS HONOUR:
Q:“Yes?---
A:I had to go in to feed that pipe, I had to go into the ceiling. All the other pipes, I’d been putting in from either on top of that coolroom where there’s a couple of lengths could go, and then they went across and then they went down. When they went on the other side, I was able to put the scaffolding up and pull the panels down from each one and it was a lot easier because they were green with carpet on it, the panel.”
MR MIDDLETON:
Q:“Were these access points, were they within the cafe in the public seating area?---
A:Yes.
Q:And part of the suspended ceiling?---
A:This one was a suspended ceiling but it had panels that came down.
Q:In bringing those panels down, what I think His Honour’s asking now is, did you in fact crawl into the ceiling cavity to place your pipes?---
A:Not when the panels were down because I didn’t need to.
Q:So the only time that you crawled into the cavity was when you were accessing the manhole behind or near the fridge?---
A:Yeah, that’s correct.
Q:But as I understood your evidence, you had to crawl, or you lowered the panel, you had to crawl 5 metres to grab the pipes and pull them, is that right?---
A:Yeah, it would be around there. I mightn’t be right on the exact - - -
Q:No, I understand. Did I understand you correctly to say yesterday that you had in this job created your own manholes?---
A:Yes.
Q:How many of those did you create?---
A:Two.
Q:Where were they?---
A:One was on top of the - well, when you went around the corner - you won’t see it there, there’s no pictures of it - when you went around the corner and in the kitchen part.
Q:I see. Did you need the permission of the cafe owner to do that?---
A:No.
Q:When did you decide that you had to make these manholes?---
A:Beforehand. We looked and we were told to put them in there if we have to.
Q:Who instructed you in that fashion?---
A:John told me to put them in.
Q:I think yesterday you said, when you were asked: ‘Did you have any permission from your employer or from anyone else to construct your own new manholes in the roof, in the ceiling’ and your answer was: ‘Where it was necessary. There was a couple of spots I had to put them in but I didn’t have another manhole with me.’ What do you mean by not having ;another manhole with me;?---
A:Not having another piece of metal, the metal manhole. I’d brought two on site and used them.
Q:This is at transcript 60, line 5 and following, you said: ‘I would have had to have stopped work and come back the next day with another manhole;?---
A:Yeah.
Q:Why was that a problem?---
A:John would have gone crook.
Q:He didn’t know, did he? You didn’t tell him this, did you?---
A:No, but he’d go crook at me.
Q:What happens when you’ve finished with that manhole that you have created yourself, do you replaster it?---
A:No, I just leave it in there.
Q:So it’s a permanent access point?---
A:Permanent, yeah. The problem was that some of the access points that they had were filled with pipes and you couldn’t get through. You couldn’t even put your head through them.
Q:In making a new manhole, do you cut a hole in the plaster in the ceiling?---
A:Yes.
Q:And then you frame it with a bit of steel?---
A:Yeah.
Q:And how do you put a cover over it? What do you do, another piece of plaster or a piece of board or what?---
A:No, you don’t put another piece of plaster. That just folds up the manhole.
Q:You just put a lid?---
A:A lid.
Q:I see. Why didn’t you make a new manhole on this occasion?---
A:Didn’t have any.
Q:I’m sorry?---
A:I didn’t have one.
Q:But you could have got one. You could have sent the apprentice off to get one?---
A:I could have done lots of things. In hindsight, I would have done a lot of things different.”[53]
[53]T113, L15 – T119, L11
58The plaintiff then went on to describe how he was on the step of the A-frame ladder and about to move into the cavity. The following evidence was given:
Q:“Was the apprentice holding the ladder as you were doing that?---
A:No.
Q:Where was he?---
A:No, he was there. That’s right, he was holding the ladder.
Q:Yes?---
A:And then he took the ladder away.
Q:And where did he take it to?---
A:Over to the other end where I was feeding the pipes through so he could, you know, add a bit of pressure to them.
Q:To another manhole?---
A:No, it wasn’t a manhole, we’d taken a panel off.
Q:What sort of panel had you taken off?---
A:One of those green panels.
Q:And that gave him access to the ceiling cavity, did it?---
A:Yeah.
Q:And so he climbed the ladder, as far as you knew, and he pushed through some pipes?---
A:Yeah, well he’d push on them while I pulled them.
Q:So you’ve climbed into the cavity and you were moving along the cavity?---
A:Yeah.
Q:And you’re on the beams, is that right?---
A:That’s right.
Q:Did you have with you a couple of pieces of timber of dimensions 600mm, 50mm thick and about 150mm wide?---
A:What for?
Q:To use as your own crawl boards?---
A:I couldn’t put crawl boards in there because they would have been resting on a piece of plaster and they would have gone straight through.
Q:I suggest you could have put them on the purlins?---
A:That’s not a very good suggestion.
Q:Why is that?---
A:The purlin’s only about half an inch thick.
Q:It’s a steel purlin, is it not?---
A:Yeah.
Q:And it would cope with the crawl board, would it not?---
A:No.
Q:Why wouldn’t it?---
A:Because it would let go.
Q:What do you mean?---
A:It’s not strong enough.
Q:It what?---
A:It wasn’t strong enough.
Q:I suggest to you the purlin would be strong enough?---
A:I suggest to you that it wouldn’t be. I’d already ascertained that.
Q:You told Mr Dohrmann that you weren’t using crawl boards, is that correct?---
A:That’s correct.”[54]
[54]T120, L1 – T121, L9
59The plaintiff was then cross-examined about a conversation that he purportedly had with a WorkSafe inspector named Barry Dunn, which was undertaken on 23 July 2014. The plaintiff was taken to various parts of that report in circumstances where it was unclear whether the inspector was relying on matters told to him by the plaintiff or indeed, others at the site. The Court allowed various questions on the basis that the plaintiff accepted that he did talk to an inspector but as noted, it is unclear from the report whether the source of the matters raised by Senior Counsel for the first defendant arose from that conversation with the plaintiff or with others. In that respect, the following evidence was given:
MR MIDDLETON:
“Thank you, Your Honour.
(To witness)
Q:I want to put this to you for you to comment, Mr Mill: did you tell this inspector when you spoke to him on the phone that you attempted to exit the space on the completion of the work and you lost your balance?---
A:No, I don’t remember. I’d just come out of hospital and I was full of painkillers.
Q:And that you came off the crawl boards going head first through the ceiling?---
A:I came off a board, yeah.
Q:You came off the crawl boards?---
A:Well, I was crawling along a board, you could say it’s a crawl board but white, it’s in there permanently and I put my hand out and the manhole let go.
Q:Did you put your hand on the rim of the manhole?---
A:Yes.
Q:Your feet were on the wooden - - -?---
A:My feet was on the board and I was holding on to the pipe. It’s sort of like that a bit, I was leaning over and I just touched that and it went crashing to the ground.
Q:But you never indicated to any investigator from WorkSafe that you were utilising crawl boards?---
A:No.
Q:What was the board that you just mentioned, where did that come from?---
A:That was already up in there.
Q:Was it a loose - - -?---
A:It was a long piece of wood.
Q:Was it a loose board?---
A:No, it was a permanent board.
Q:Could it be moved?---
A: No.”
HIS HONOUR:
Q:“One thing I wanted to ask you, Mr Mill, because you’re talking about your fall again and as I understood it, you had one hand hanging on to a pipe, you described your feet on this board, this wooden board you’re talking about and you described your other hand just touching - I’ll use that neutrally – the manhole cover. When you fell, do you have any recollection which part of your body fell through the manhole first?---
A:I remember me head going through first, because I remember seeing all the area. I don’t know, because I bashed my head when I came down, I had six stitches in the skull.
Q:That’s what I was going to ask you, whether you had any memory as to whether you went through head first or legs first, if you understand what I mean?---
A:Yeah, I went through head first.
Q:Thank you?---
A:If it had have been legs, I probably might have been okay.”
MR MIDDLETON:
Q:“I just want to clarify something. Were there metal beams there, metal bearers upon which the plaster was secured?---
A:There were little ones, about that big.
Q:But they were metal?---
A:Little ones, they weren’t strong enough.
Q:I haven’t asked you that yet, but were they metal?”
MR INGRAM:
“They look like an inch at most, possibly less, Your Honour.”
MR MIDDLETON:
“Mr Ingram, please. Is this an objection?”
HIS HONOUR:
Q:“It’s probably my fault. Mr Mill, when you asked about these, you held up your fingers to demonstrate what you say was the size of them. If you could do that again and please tell you what you would estimate the size was?---
A:About half an inch.
Thank you.”
MR MIDDLETON:
Q:“They are attached to the plaster?---
A:Yeah, they were supposed to be attached to the plaster.
Q:Are they meant to carry the weight of a person and the plaster when you’re on a crawl board?---
A:It wouldn’t.
Q:Why not?---
A:Because I’d crash through the thing. It’s not strong enough. It didn’t have a lot of these uprights.
Q:How is it that you were able to crawl 5 metres in this area without falling through the plaster?---
A:Because I wasn’t on the plaster.
Q:What were you on?---
A:I was on the board.
Q:What board?---
A:The board that runs along. In one of those photos, you see the pipes sitting on top of the board.
Q:So that board would be sufficient to carry your weight?---
A:Yes.
Q:Safely?---
A:Yes, it did carry me weight.
Q:And did you have to get off the board in order to get out of the manhole, get through the manhole to descent?---
A:No, I was going to put my foot down first, put my foot through the manhole.
Q:Yesterday you described how you did a rotation?---
A:Yeah. When I pulled the pipes up, I had to turn around and come back through the thing. That’s when I put my hand on the manhole.
Q:When you were in that position prior to falling, you didn’t feel there was any concern for your safety because you knew what you were doing, is that right?---
A:Yeah.
Q:Was it just an inadvertence on your part where you put your hand on the manhole and it gave way?---
A:Well, I didn’t think it would give way.”
HIS HONOUR:
Q:“I just want to get this clear, at the time you put your hand on to the manhole cover and it gave way, at that same time, one was looped over the pipe a little bit higher, or your height, and your two feet were on this board that you described, is that right?---
A:Yes.
Q:And your evidence is that the hand touched the cover of the manhole, the other hand touched the manhole and effectively that manhole - not effectively, the cover gave way and you went head first through the hole?---
A:Yeah.”[55]
[55]T123, L19 – T126, L24
60The plaintiff again was taken to Figure 10 of Mr Dohrmann’s first report dated 7 November 2019, and when queried as to whether or not the beam shown in that Figure 10 was the beam where he placed his feet, the plaintiff denied that that was the beam and there was nothing in the photograph which demonstrated or indicated where he would have put his feet or leg.[56]
[56]T127, L8-17
61In particular, the plaintiff was referred to his Answers to Interrogatories wherein he deposed in part:
“My hands and my feet were on the bearers.”[57]
[57]See Answer 1(a)(ii) of the plaintiff’s Answers to the Interrogatories delivered on behalf of the first defendant
62When queried as to whether or not the bearers were depicted in that Figure 10, the plaintiff stated “no”.
63The plaintiff was then taken to Figure 9 of the first report of Mr Dohrmann dated 7 November 2019 and, in particular, Senior Counsel for the first defendant asked the plaintiff whether he could identify anything seen in that figure, and the following evidence ensued:
A:“Yeah, on the right of the picture you will see the two pipes running on something.
Q:The two white pipes?---
A:Yeah.
Q:Could we have the cursor on those, please. Just keep it still for a minute on one of the white pipes?---
A:Yeah. You see where those white pipes are sitting is where I walked.
Q:Where the yellow circle is or to the right of it?---
A:To the right of it.
Q:And immediately to the right of it?---
A:Yeah.
Q:Is the cursor there, I can’t see?---
A:Yeah, it’s around there.
Q:They are the pipes that you put in?---
A:Yeah.
Q:And where are your feet, what bearers?---
A:My feet are still on that.
Q:On what?---
A:On that ledge that those pipes are sitting on, I’m grabbing them from over there and pulling them up towards me. I’m still crawling along that bit of wood.
Q:See the blue circle?---
A:Yeah.
Q:If the cursor moves to the right, there’s a piece of wood - just a bit lower, right in the middle there, is that the piece of wood you’re referring to?---
A:Geezus, I don’t know.
Q:Can you tell us, you move the cursor and tell us where your legs were, where were they?---
A:My feet was up here.
Q:You have to use the photo, if you can. I can’t understand you otherwise?---
A:My feet were up on that board, do you know what I mean?
Q:No, I don’t?---
A:Well, the things weren’t there, the pipes weren’t there and I’ve dragged the pipes through. I’ve got my feet where those pipes are.
Q:See those metal things in the foreground at the very bottom of the photo?---
A:Yeah.
Q:Are they the metal pieces that attach to the plaster?---
A:Yeah. It looks like they haven’t even been put in properly.
Q:Wouldn’t you be able to put your weight on those?---
A:I wouldn’t put me weight on those.
Q:You can’t, in that photo, identify where it was that you had, as you describe in your answer to interrogatories, your hands – ‘My hands and feet were on the bearers five seconds before’ and then your hand was touching the side of the manhole and the other was wrapped around the pipe at the time you fell. Your feet were on the bearers. Where were the bearers that your feet were on, that’s what I’m trying to establish?---
A:The bearer, that one - where the pipes are sitting, underneath is the bearer.
Q:See the cursor there?---
A:Yeah.
Q:Is it that grey/brown area under the white pipe?---
A:Yeah.”[58]
[58]T129, L7-18
64The plaintiff was questioned as to whether or not Mr Adgemis ever saw the plaintiff working in the cavity depicted in Figure 10. The plaintiff responded:
Mr Miller accepted that the fracture of the vertebrae had been repaired, but refused to accept that it was a good result, given that the plaintiff still had persisting pains in his thoracic spine, neck, with radiation to the shoulders and sometimes the arms.
The proximity between the onset of these types of pains and the work incident also suggests a strong relationship to the work incident rather than a coincidental commencement of pain in the neck due to underlying degenerative changes;
(e) I also find that following the work incident on 22 July 2014 the plaintiff was in hospital for about one week, and thereafter underwent rehabilitation at the Epworth Hospital for about two weeks, and ultimately resumed work on 11 November 2014 with the first defendant.[440] I also do find that his resumption of employment resulted from his insistence to his general practitioner that he was capable of returning to some sort of work, and ultimately she provided certificates to that end. I accept, as commented by Dr Middleton, the plaintiff could hardly be said to be “shy of work”. I also accept, as commented by Mr Miller, the plaintiff returned to work in circumstances where he was in pain but had a “stoical” outlook;
(f) The plaintiff initially worked three or four days a week, but this gave rise to significant pain, and after attending the Epworth his hours of work were reduced to three days a week. However, by 2015 he was working full-time hours, with some restrictions on what he could lift, and this continued through 2016 and 2017.[441] Throughout this period he was certified to be on light duties with no heavy lifting, and this continued until the early part of 2018 when the hours of the plaintiff were reduced to three days per week;[442]
(g) I also find that to the extent that the plaintiff was unable to perform work for periods from the date of injury up to the date of his stroke (whether it be a reduction in days or hours), such incapacity for work has resulted from the work incident and the consequential injuries;
(h) At the time of the trial, the plaintiff described his pain levels as about 4 or 5 out of 10, and sometimes as low as 1 or 2 out of 10,[443] and that he was not currently undertaking any formal treatment or taking any medication for his thoracic spine injuries or any of his other work injuries.[444] Although he had been treated initially with physiotherapy, this ceased in May 2018. Furthermore, on leaving hospital after his fusion, he was prescribed Targin and Endone medication, and I accept his evidence that it took about five years to wean himself off these medications.[445] The plaintiff is taking a variety of medications for his stroke and cardiac condition;
(i) I also find that the plaintiff has had a great love of motorbikes which commenced when he was a young teenager at secondary school. As a result of his injuries following the work incident, I do find his involvement and enjoyment in relation to motorbikes has been reduced, which has caused frustration and anxiety on the part of the plaintiff. In particular, the plaintiff gave evidence that, leading up to his work injury, he owned a 1964 Velocette motorbike and he also had a 1969 BSA motorbike. He frequently would tinker with such motorbikes and go on rides with various friends of a reasonably long distance. He generally rode a couple of times a week, and obtained much enjoyment from such activity.
He now has great difficulty riding or attempting to ride the 1964 Velocette, as such motorbike is low-slung, causing him to experience pain when attempting to ride the bike and indeed even to kick-start the bike. In relation to the 1969 BSA bike, he had trouble kick-starting the bike, which was never the case prior to his fall, and ultimately had to sell such bike, causing him to buy a Triumph bike which he could sit upright on. His riding of motorbikes has significantly diminished from the time of his fall up to his stroke, although he could go on some limited rides on the Triumph bike on which he could sit in an upright manner.
[440]The plaintiff had a clear memory of this date, given that it was his birthday
[441]T140, L29 – T141, L24
[442]See certificates of capacity at DCB 36-89
[443]T85, L7-L10
[444]T101
[445]T80
460The treating neurosurgeon, Mr John Cunningham, was not called as a witness in this proceeding, and no explanation was given as to his absence. Those acting for the first defendant requested the Court to take into account the principles enunciated in O’Donnell v Reichard,[446] and in particular the joint judgment of Newton and Norris JJ.
[446][1975] VR 916 at 929
461I refer to the judgment of Newton and Norris JJ at page 929 of O’Donnell v Reichard[447] wherein it is stated:
“It is sufficient to say that in our opinion for the purposes of the present case the law may be stated to be that where a party without explanation fails to call as a witness a person whom he might reasonably be expected to call, if that person’s evidence would be favourable to him, then, although the jury may not treat as evidence what they may as a matter of speculation think that that person would have said if he had been called as a witness, nevertheless it is open to the jury to infer that that person’s evidence would not have helped that party’s case; if the jury draw that inference, then they may properly take it into account against the party in question for two purposes, namely: (a) in deciding whether to accept any particular evidence, which has in fact been given, either for or against that party, and which relates to a matter with respect to which the person not called as a witness could have spoken; and (b) in deciding whether to draw inferences of fact, which are open to them upon evidence which has been given, again in relation to matters with respect to which the person not called as a witness could have spoken.”[448]
[447]Ibid
[448]See also Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361 at 384-385 per Heydon, Crennan and Bell JJ
462I consider that the principles enunciated in Jones v Dunkel[449] are of little assistance in the present matter. Although, clearly enough, the treating neurosurgeon, Mr Cunningham, was not called, and no reason was given by those acting for the plaintiff for his non-attendance, it is difficult to infer in what way any evidence of Mr Cunningham would not have assisted the plaintiff. Firstly, it is unclear on the evidence as to how frequently, and for what time, did Mr Cunningham review the plaintiff after the surgery; and secondly, the major medical dispute between the doctors in the proceeding is really whether or not the ongoing pain symptoms which the doctors accept the plaintiff suffers, are a consequence of the fall or his underlying neck degeneration.
[449][1959] HCA 8
463In this respect I have already found that on the basis of Mr Miller’s evidence, I am satisfied that such ongoing pain is as a result of the fall. In all of the circumstances, I take into account the non-attendance of Mr Cunningham but I ultimately consider that on the evidence before me the plaintiff has suffered, and will continue to suffer, pains in both his thoracic and cervical spine, and in particular the radiation of pain from his cervical spine into his shoulders and arms as a result of the work incident.
464I now make findings of fact, particularly relevant to the monetary assessment of damages for past loss of earnings within the meaning of “pecuniary loss damages”. I find as follows:
(a) Both the accountant, Mr Allan, retained on behalf of the plaintiff, and those acting for the first defendant, agree that the actual earnings of the plaintiff – that is to say, earnings when injured – over the period from 22 July 2014 (the date of injury) to 30 May 2018 (the date of the stroke) amount to $153,690;
(b) In assessing the lost earnings – that is, earnings that the plaintiff would have generated absent his injury – Mr Allan, as I have already recorded, was instructed to assume the plaintiff would be earning $80,000 from the date of his injury and, furthermore, Mr Allan made plain that, in his calculations, he assumed that such earnings would have increased, as calculated and reported by the Australian Bureau of Statistics as data series A85006427A.
I consider such an approach to be inappropriate, given that when the plaintiff suffered his injury he was a second-year apprentice refrigeration mechanic, and for the financial year ending 30 June 2014, he had earnt $42,240 ($812.30 gross per week). After the deduction of taxation, the net earnings for that year were $36,356 ($699.15 net per week).
Bearing in mind that the plaintiff suffered injury on 22 July 2014 – approximately three weeks into the next financial year – I consider that the loss of wages should be based on $699.15 per week. Accordingly, if one takes the period from 22 July 2014 to 1 January 2016, approximately seventy-five weeks, the net loss to the plaintiff over this period was:
75 weeks x 699.15 = $52,436.25, say $52,436.
Such lost wages would have generated superannuation of $77.16 per week. Accordingly:
75 weeks x $77.16 = $5,787.
Accordingly, the total loss for the period from 22 July 2014 to 1 January 2016 is $58,223, made up of lost wages of $52,436 and lost superannuation of $5,787;
(c) I have limited the loss described in paragraph (b) above to 1 January 2016, as I consider that, on all the evidence, it is likely that the plaintiff would have been (absent the injury), a fully-qualified refrigeration mechanic from 1 January 2016. In this respect, those acting for the first defendant submitted that it would not have been until 1 July 2016, some six months later. There was a fair amount of evidence about this issue and, unfortunately, it was not particularly clear.[450]
[450] T46, L19-26; T88, L9 – T90, L22 and T210, L11-12
As I understand the thrust of what the plaintiff was asserting, is that he would have been a qualified refrigeration mechanic by 1 January 2016, as the course would have taken into account the practical experience that he had working for the first defendant and, accordingly, allow him to effectively “graduate” by 1 January 2016;
(d) Accordingly, on the basis that the plaintiff was a qualified refrigeration mechanic from 1 January 2016, it is necessary to calculate what he would have earnt over the period from that date to 30 May 2018, a period of approximately 127 weeks.
During his evidence-in-chief, the plaintiff was asked as to what his “belief” was as to what he would earn as a qualified refrigeration mechanic, and the plaintiff stated:
“It’s around $80,000. I’ve looked that up on the internet”.[451]
It is not clear from such assertion as to whether that amount represented someone who just qualified as a refrigeration mechanic, or it was an average amount amongst all refrigeration mechanics or, indeed, was relevant only to various employers.
The plaintiff also gave evidence that it was his intention to leave the employment of the first defendant and seek alternative employment if he had remained uninjured. In particular, he asserted that other employees were paid overtime (which he alleged he was not paid) and various allowances (again, which he alleged he was not paid). Unfortunately, there was no particular evidence from any particular employer as to what he would pay a newly-qualified refrigeration mechanic.
After a consideration of all the evidence, I consider that, for the period from 1 January 2016 to 30 May 2018, the plaintiff would have earnt a gross salary in the order of $66,433. Such a sum is consistent with the evidence of Ms Rintoule, who opined in 2018, that according to a refrigeration mechanic medium annual salary is $66,433 up to $93,485 gross per annum.[452] Being a newly-qualified refrigeration mechanic, I consider that the plaintiff would have been earning, initially at least, at the lower end of this range of salaries.
The sum of $66,433 gross per annum translates to $1,277.55 gross per week or, alternatively, $998 net per week.
127 x $998 = $126,746.
[451] T88, L6-7
[452] PCB 114
The lost superannuation on such payment of wages is $120.99 per week and accordingly, 127 weeks by $120.99 = $15,365.73, say, $15,366.
Accordingly, over the period from 1 January 2016 to 30 May 2018, the plaintiff suffered a total loss of $142,112, made up of lost wages amounting to $126,746 and lost superannuation amounting to $15,366.
465Over the entire period from 22 July 2014 to 30 May 2018, the plaintiff suffered loss of wages and superannuation amounting to $200,335, being the addition of $58,223 (for the period from 22 July 2014 to 1 January 2016) and the sum of $142,112 (for the period from 1 January 2016 to 30 May 2018).
466On the evidence available, it is clear that the plaintiff may have been entitled to various allowances after he qualified as a refrigeration mechanic. Such allowances cannot be calculated with precision, as it depends on a variety of factors based on the number of days worked, the types of worksites attended, whether a car allowance would be relevant, which may depend on whether or not the vehicle can be permitted for private use.[453]
[453] See generally T293, L21 ꟷ T29, L17
467I consider it probable that the plaintiff would have been paid some types of allowances, although not necessarily all paid at one time. In this sense, it would be improbable, in my view, that the plaintiff would have been entitled to all the allowances generally referred to in the documentation, throughout the period of time that he would have been a refrigeration mechanic if uninjured.
468Any assessment of allowances does border on speculation, but I do consider it would be unfair to the plaintiff to not allow some allowances, given the probability he would have been paid some over the period of time he was fully qualified. Accordingly, I intend to allow 50 per cent of the allowances of approximately $330, set out in the report of Ms Rintoule, dated 18 January 2018. Accordingly, if one allows $165 per week for 127 weeks, the loss of allowances amounts to $20,955.
469Accordingly $200,335 + $20,955 = $221,290, from which must be deducted the actual earnings over the period from 22 July 2014 to 30 May 2018, which, as I have already calculated, amounts to $153,690, which gives rise to a total loss of earnings of $67,600.
13 DAMAGES
470On the basis of the aforementioned calculations, I find that the plaintiff has suffered a loss of earnings (that is net wages and superannuation) of $67,600 over the period from 22 July 2014 to 30 May 2018.
471As I have already recorded, I am unable to make what may be termed a “final order” in relation to pecuniary loss damages involving past loss of earnings. It is clear the plaintiff received weekly payments of compensation pursuant to the relevant legislation, and although there is a reference to an amount of compensation, I do not have details of the gross amount of weekly payments which would have be deducted from the loss of earnings and, indeed, the tax component of such weekly payments, which would be the basis for Fox v Wood[454] damages.
[454] Op Cit
472I would assume these matters are straightforward and I will leave it to the parties to adjust any loss of earnings, taking these matters into account.
473In relation to “pain and suffering damages”, those acting for the first defendant submitted that an award of approximately $200,000 to $220,000 for “pain and suffering damages” to be a fair and reasonable amount. In particular, those acting for the first defendant submitted that the plaintiff has made a “very good recovery” from his spinal injuries, and the surgery, as was made manifest by his return to full-time work, albeit with some limitations. Those acting for the plaintiff submitted that an appropriate range for “pain and suffering damages” was from $425,000 to $475,000. Reference was made to the opinions of Mr Miller, which I have already discussed and accepted.
474As I have already found, the plaintiff underwent a significant operation involving fusion in his thoracic spine and also suffered aggravation of his pre-existing degenerative changes in the neck, causing significant pain in the neck, shoulders and sometimes the arms when working, although such pain diminished after he ceased working. I also take into account that his quality of life was significantly diminished by his reduced involvement with motorbikes – that is to say, either tinkering with them and, more particularly, riding the bikes, as he did prior to his injury.
475I also take into account that he has been taking no medication actively for any injuries related to his fall and it has been some period since he has undergone physiotherapy, or any other type of therapy, for his thoracic or neck condition. I also note that the plaintiff has been a long-term user of marijuana and continues to use such drug to assist him with this sleeping. Although not completely clear, I tend to the view that, at least part of the reason that drug is taken on a regular basis, is for the plaintiff to be able to sleep when suffering, albeit, lower-grade pains now, than when he worked.
476At the time of his work injury, the plaintiff was fifty-five years old. As I have already accepted, I consider the plaintiff is a relatively stoic man, in that he returned to work, and continued to work, suffering from a reasonable degree of pain, particularly in his neck and shoulders, and sometimes extending down the arms. His stoicism must be taken into account in a positive way when assessing damages.
477Of course, the advent of the stroke and, to a lesser degree, his cardiac condition, has also impacted on his enjoyment of life. Seemingly, it was his stroke that brought his employment to an end. Obviously enough, the consequences of his stroke and cardiac condition are not compensable in relation to the plaintiff’s claim for damages as a result of the work injury.
478After a consideration of all the evidence, I have come to the view that an appropriate sum for pain and suffering damages would be $265,000.
479I do not know whether the plaintiff was paid any lump sum compensation in relation to impairment of his back (which I assume would have to be deducted from any award of pain and suffering damages) and, again, I will not make a final order, but leave it to the parties to finalise such order.
14 CONCLUSION
480After a consideration of all of the evidence, I find:
(a) the first defendant is liable to pay damages to the plaintiff;
(b) the claim against the third defendant by the plaintiff is dismissed;
(c) in relation to pecuniary loss damages, I find that the first defendant has a liability to pay the sum of $67,600, being loss of earnings (that is net wages and superannuation) and in relation to pan and suffering damages, the first defendant has a liability to pay $265,000; and
(d) that the plaintiff was contributorily negligent and his damages should be reduced by 15 per cent.
481I make no formal orders or enter judgment until finalisation of the orders made by consent or, alternatively, the Court makes such orders after hearing argument from the parties.
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