Miller v Paua Nominees Pty Ltd - [2003] WADC 50

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: MILLER -v- PAUA NOMINEES PTY LTD [2003] WADC 50

CORAM: YEATS DCJ

HEARD: 3-7 FEBRUARY 2003

DELIVERED : 7 MARCH 2003

FILE NO/S: CIV 1497 of 2000

BETWEEN: RAYMOND FREDERICK MILLER
Plaintiff
AND
PAUA NOMINEES PTY LTD
Defendant

Catchwords:

Negligence - Duty of care - Whether defendant scaffolder owed the plaintiff a duty of care - Plaintiff injured leaping from the scaffold onto the fuselage - Neck, shoulder and lower back injuries - Provisional assessment of damages $316,796

Legislation:

Nil

Result:

No duty of care
Provisional damages

Representation:

Counsel:

Plaintiff: Mr K J Bradford
Defendant: Mr R E Keen

Solicitors:

Plaintiff: Bradford & Co
Defendant: Srdarov Richards Burton

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

Caparo Industries v Dickman (1990) 2 AC 605
Complete Scaffolding v Adelaide Brighton Cement [2001] SASC 1999
Donoghue v Stevenson [1932] AC 562
Eastcoast Scaffolding Pty Ltd v Young [2000] NSWCA 187
Fox v Wood (1981) 148 CLR 438
Graham Barclay Oysters Pty Ltd v Ryan: Ryan v Great Lakes Council: State of New South Wales v Ryan [2002] HCA 54
Graham v Baker (1961) 106 CLR 340
Husher v Husher (1999) 197 CLR 138
Jongen v CSR Ltd & Anor (1992) A Tort Rep 81-192
Medlin v State Government Insurance Commission (1995) 182 CLR 1
Sullivan v Moody (2002) 75 ALJR 1570
Ta v Lucky Import and Export Co Pty Ltd (2002) WASCA 65
Tame v New South Wales: Annetts v Australian Stations Pty Ltd [2002] HCA 35
Thomas v O'Shea (1989) A Tort Rep 80-251
Voli v Inglewood Shire Council (1963) 110 CLR 74

Case(s) also cited:

Hetherington v Mirvac Pty Ltd & Ors (1999) A Tort Rep 81-514
Kolodziejcyk v Grandview Pty Ltd (2002) A Tort Rep 81-673

YEATS DCJ: The plaintiff claims damages for injuries suffered on 19 June 1997 in the course of his employment with Combined Insulation Services as a sheet metal worker re-cladding a mock 747 aircraft at the Pearce Air Force Base. The defendant is the scaffolder engaged by the plaintiff's employer to design and install scaffolding to enable workers to access the 747 aircraft.
Both liability and quantum of damages are in issue. The two principal issues are:
•Whether the defendant scaffolder owed a duty of care to the plaintiff.
•Whether the plaintiff's neck injury was caused by the defendant's negligence.

History

The plaintiff was born in Dunedin, New Zealand on 18 February 1947. He is 56 years of age. He left school at 16 and spent a few years working on farms in the shearing industry. By the age of 19 he began working in the insulation industry. He worked in that industry until 1968 when he joined Salmac Insulation where he was involved in both hot and cold sheet metal work. He worked at that job until he started Miller's Insulation and worked with his own employees in New Zealand. In 1986 he and his family moved to Australia. In Australia, the plaintiff worked for United Insulation, doing general insulation work on sites around the State as well as in Perth. The plaintiff said in evidence that the sheet metal industry was somewhat up and down and, in 1993, United Insulation laid off all its employees and the plaintiff lost his position. That was apparently a down time in the industry. The plaintiff turned to alternative employment. He spent 17 months doing a sweets delivery round, but then sold that business and bought a small sweets delivery run which he also sold after operating it for three months. Then, in about 1995 to 1996, the plaintiff spent a year running Stone‑Seal, a slip‑proof paving business under a franchise. He ceased that work after about a year when he discovered that the process was faulty.
In 1996, the plaintiff commenced employment with Combined Insulation Services ("CIS"), where he worked for a year prior to the accident on 19 June 1997. His employment involved general insulation contracting work. He described doing some light work which involved making sheet metal and working at a work bench, and then doing some heavier work which involved putting up sheet metal and climbing up and down scaffolding and ladders. In 1997, CIS entered into a contract with the Department of Defence at Pearce Airforce Base to re-clad the exterior of a mock 747 aircraft with sheet metal, zincaneal. The plaintiff was working in that project when the accident happened.
In his evidence, the plaintiff admitted that to be called a sheet metal worker, he would have needed a trade certificate, but his involvement in the industry meant that he hired sheet metal workers. Because of his experience, he gained employment as a sheet metal worker. The evidence shows, and I accept, that the plaintiff was always in employment. The only time off he has had was a four‑day period in 1987 shortly after coming to Australia when he twisted his knee. Otherwise, he has not had sick time off, nor has he had injuries, nor has he received social security payments when he has been laid off. I accept that the plaintiff has a very good work ethic and does his best to gain and retain employment.

The scaffolding

The plaintiff was involved in re‑cladding the body of the mock 747 aircraft at Pearce Airforce Base as an employee of CIS. The job involved other workers removing the metal cladding from the plane and then painting and sanding the plane. After that the plaintiff and other sheet metal workers ("the workers") re‑clad the plane with zincaneal. The plaintiff said the metal sheets used to clad the aircraft were some eight metres long. In order to have access to the surface of the aircraft, the workers relied on scaffolding erected by the defendant Instant Scaffolds ("the scaffolder").
In order to understand the circumstances of the accident, it is necessary to consider the photographs, Exhibit 1, the model of a 747 aircraft, Exhibit 2, and the diagram, Exhibit 4. CIS, the plaintiff's employer, entered into a written contract, Exhibit 12, with the scaffolder. The scaffolder was to complete the project in three stages. "A" section extended from the nose of the aircraft up to the first door which is grid line 16 on the diagram of the aircraft, Exhibit 4. "B" section extended from the first door to the wing, grid line 16 to 12.5. "C" section extended from the edge of the wing (grid line 7) up to the tail section (grid line 4).
As it developed, the scaffolder was asked to complete section "C" first. Work commenced in December 1996. It took the scaffolder one week to install the scaffolding on section "C". CIS workers then spent approximately five months re‑cladding the back section of the aircraft. In May and June 1997, the scaffolder progressively removed the scaffolding from section "C" and installed scaffolding for section "B".
The scaffolding consisted of a standard aluminium framing suitable for light work. It was composed of sections approximately 1.4 metres wide. Each section was a standard unit 1.6 metres in height. There were five rungs on the side of each section which were 400 millimetres apart. Those rungs can be seen in photograph 1.1. The scaffolding sections were built and fixed one on top of the other in identical vertical towers on either side of the aircraft and then joined across the top by horizontal ladder beams. These ladder beams are visible in photograph 1.1. The vertical scaffolding towers were approximately 10 metres in height. Whenever scaffolding reaches more than four metres in height, safety regulations require that it be installed by a licensed scaffolder and "tagged out" by the licensed scaffolder before the scaffolding is handed over to CIS.
The placement of the 10 metre vertical scaffolding towers was determined by the widest part of the body of the aircraft. Because CIS was re‑cladding the fuselage, it needed access to the fuselage but the scaffolding could not touch the fuselage. The scaffolding towers were positioned 10 to 15 centimetres away from the widest portion of the fuselage so that the metal sheets could be attached. But, of course, the round or oval shape of the fuselage meant that the body of the aircraft narrowed toward the top. The scaffolder provided a cantilevered platform attached to the inside of the scaffolding towers in order to provide access to the upper parts of the fuselage. The cantilevered section can be seen in photograph 1.9. It was 1.6 metres in height with five rungs on each end some 400 millimetres apart, each able to support the platform. In photograph 1.9, the platform was on the middle rung of the cantilevered section, the same position as on the day of the accident. There were also two guard rails placed on the inside of the cantilevered platform, one at about 850 millimetres and the other just over 400 millimetres above the platform. Those guard rails are visible in photograph 1.9. The guard rails were not in place on the day of the accident. The plaintiff gave evidence that the workers removed the guard rails from time to time when it was necessary to gain access to the fuselage.
The scaffolding installed on section "B" met different configurations from the scaffolding installed on section "C" because the shape and height of the aircraft changed. In section "C", the fuselage was more round while, in section "B", where the "bubble" or business class section of the aircraft is found, the fuselage was more oval in shape and the top of the aircraft was higher. This is apparent on the diagram, Exhibit 4, and on the model, Exhibit 2. This change in shape and height altered access to the top of the aircraft from the cantilevered platform. The scaffolder installed a wire running along the spine of the aircraft at the top. Lanyards and safety harnesses could be attached to that wire for workers who needed to work on the top of the aircraft. There was no evidence of any lanyards or safety harnesses being provided by the employer. They were not part of the scaffolder's contract. The evidence was that it was necessary for the workers to gain access from the scaffolding to the top of the aircraft in order to fasten the metal cladding to the fuselage. When the workers worked on section "C" of the aircraft, they were able to step across from the cantilevered platform on to the top of the aircraft. Once on the top, they could walk and move easily along the length of the aircraft. But when they reached section "B", and the height and shape of the aircraft changed, they were no longer able to step across to the top of the aircraft.
The vertical distance from the cantilevered platform to the top of the plane was two metres. The horizontal distance from the inside edge of the cantilevered platform to the centre of the aircraft was 2.27 metres. It was conceded that the distance from the cantilevered platform up the sloping side of the aircraft to the centre of the top of section "B" was greater than 2.27 metres. It was conceded by the defendant that the scaffolding did not provide access to the top of the aircraft once the scaffolding installed in section "C" had been removed.

The accident

The accident took place on 19 June 1997. The plaintiff was cladding the section of the aircraft between grid line 12 and grid line 13 as shown on Exhibit 4. It was in the "B" section of the aircraft.
The plaintiff gave evidence that in the position he was working at the time of the accident he had to leap across a gap of about 3‑1/2 feet in order to move from the cantilevered platform and gain access to the top of the aircraft. The plaintiff said Martin Pollock was the CIS supervisor on the site and he mentioned the access problem to Mr Pollock but nothing was done about it. Mr Pollock was not called to give evidence.
The plaintiff's evidence was that on the day of the accident, he had an electric drill in his right hand. He did his normal jump across intending to grab the ladder beam with his left hand but he completely missed his grip. As a result of that, instead of going forward, he began going backwards and felt he was falling off the plane. He leapt up and just grabbed the ladder beam with his left hand as he was falling. He was left hanging by his left arm up in the air. He immediately threw the electric drill he held in his right hand on to the top of the plane which was some five feet or six feet away and then grabbed hold of the ladder beam with his right hand and, after a couple of hand holds, he was back on the plane, standing on the top of the plane.
The plaintiff said he was very shaken by the incident as he thought he could have fallen some distance to the ground. When he grabbed the ladder beam with his left hand, the plaintiff said he felt something give in his left shoulder and his lower left back.
Under cross‑examination, the plaintiff admitted that there were handrails in place on the cantilevered platform, but he said they were removed in order to gain better access to the surface of the aircraft. He said the practise was to remove them and then replace them after the workers had completed their work in the area. Under cross‑examination, the plaintiff admitted that he had stepped on to the side rail of the cantilevered scaffolding before he leaped across so that he was some 400 millimetres above the level of the platform when he made his leap. Under cross‑examination, the plaintiff admitted that there were lanyards down the centre spine of the plane and, once access was gained to the top of the plane, he could have used a safety harness attached to the lanyard if one had been provided.
The plaintiff admitted that the cantilevered section of the scaffolding provided adequate and safe access to the top of the rear section of the 747 in section "C". It was suggested to him in cross‑examination that he could have got on to the top of section "C" and easily walked up to the top of the plane where he was required to work in section "B" on the day of the accident. According to the plaintiff, however, the scaffolding had been removed and there was no longer access by scaffold from section "C" to the top of the aircraft.
Under cross‑examination, it was suggested to the plaintiff that he could have reached up and held onto the ladder beam and simply walked up the plane on to the top. The plaintiff denied that proposition. It was his evidence that you launched yourself across because you needed your momentum when you landed on the plane and grabbed the ladder beam, and your momentum carried you up the next couple of paces on to the top. In re‑examination, the plaintiff said that if you were holding on to the ladder beam while standing on the vertical rung, you could get to the top of the plane if you were like a monkey, but that would be an illegal thing anyway. You just would not do it. You would be in mid‑air with nothing under you at all.
The plaintiff maintained that the only way to get to the top of the plane was to launch himself or leap across and scramble up, grabbing the ladder beam. It was his evidence that on the day of the accident, he missed his handhold and then grabbed the ladder beam and that is when his left shoulder was injured. Under re‑examination, the plaintiff maintained that he had to leap across at least 1‑1/2 metres and the further you managed to leap, the easier it was.
So far as the safety wire running along the top of the aircraft was concerned, the plaintiff's evidence was that in order to get to the top of the plane to hook on to the safety wire, first you had to launch yourself across from the cantilevered scaffolding.

Expert evidence

Andrew Theodorus van der Meer, a consulting engineer, gave evidence on behalf of the plaintiff and provided a report, Exhibit 9. Mr van der Meer graduated from the University of Western Australia in 1970 with an Honours degree in Civil Engineering. He completed a Masters degree in Engineering Science in 1973 and has practised as a consulting engineer since that time. In 1979, he established his own practice. Since graduation, he has been involved with the design and construction of scaffolding systems for the purpose of providing work platforms for workers including the provision of access. Mr van der Meer has been advising for more than 30 years on the design and construction of specialised scaffolding systems.
It was Mr van der Meer's opinion that the scaffolder could have erected scaffolding which would have provided a safer means of access for workers on to the top of the fuselage. The scaffolder could have provided a cantilevered sloping ramp similar to those used for wheelchairs, extending from the work platforms directly on to the fuselage. Mr van der Meer described such a ramp as a lightweight mobile ramp which could have been easily relocated from one part of the job to another part as it was needed. Such a ramp could have been provided at a cost of about $100. It was Mr van der Meer's opinion that if such a ramp had been available on the day of the accident, the workers would not have had to propel themselves or leap across a void between the scaffolding and the fuselage in order to gain access to the top.
The managing director of the defendant scaffolders, Mr Murray James McLean, who is an experienced licensed scaffolder and the designer of this scaffolding, conceded in evidence that it would have been possible to install such a ramp as Mr van der Meer suggested. But Mr McLean said that CIS never asked for such a ramp; nor was he ever informed that workers were having difficulty accessing the top of the aircraft in section "B". Furthermore, Mr McLean maintained that the terms of the contract, Exhibit 12, required that he use only standard scaffolding and that such a ramp was not standard scaffolding.
Counsel for the defendant foreshadowed a challenge to Mr van der Meer's qualifications on the basis that Mr van der Meer may have been a consulting engineer, but he was not a licensed scaffolder, nor was he a licensed assessor under the safety regulations. He could not build or tag out any scaffolding. That objection was not pursued in submissions. I accept Mr van der Meer's evidence that he makes stress calculations of scaffold members to make sure the assembly is not overloaded. While licensed scaffolders understand the regulations and standard spacing of members, they are unable to handle unusual designs. In such situations, builders usually call on an engineer to certify a scaffold as safe. Mr van der Meer conceded he could not construct scaffolding over four metres in height because he is not a licensed scaffolder. Nor could he "tag out" scaffolding. But his expertise placed him in a position above that of licensed scaffolders and assessors. He was able to certify scaffolding as safe.
In this case, I am satisfied that the field of enquiry is one in which expert opinion can be called. An ordinary person would be unable to form a correct view about a safe means of access for workers from the scaffolding to the top of the aircraft. Furthermore, I accept Mr van der Meer as an expert qualified to give the opinion he has given. He has undergone special study and is well qualified to provide an expert opinion on a safe means of access for a worker from the scaffolding to the top of the aircraft. It is of no relevance to his expertise that he is not himself a licensed scaffolder or a licensed assessor. For these reasons, I accept his expert opinions and rely on them.

Credibility

I accept the evidence of the plaintiff without qualification. He appeared to me to be honest and forthright in his evidence. I am satisfied based upon his evidence that the accident occurred as he said it did. There was a difference between the plaintiff's pleading and the plaintiff's evidence about how the accident happened. Paragraph 3(e) of the amended statement of claim is in these terms:
"On stepping across to the plane, the plaintiff lost his footing and attempted to arrest his fall by grasping onto the scaffolding with his left hand ('the accident')."

Yet in his evidence the plaintiff said he did his normal jump across intending to grab the ladder beam with his left hand but he completely missed his grip. Although missing one's grip is fundamentally different in many circumstances from losing one's footing I accept that the accident happened as described by the plaintiff in his evidence. No doubt his feet were also involved in his efforts to prevent himself falling after he missed his grip. It is not surprising that he would lose his footing as well on the slanted slope of the upper part of the aircraft.
The plaintiff impressed me as a man who has always been in some form of employment and who is not a malingerer. I have confidence in his evidence as evidence of truth. There was no element or tendency to exaggeration.
I have considered Mr McLean's evidence very carefully. There was no problem with his examination‑in‑chief but, under cross‑examination, he appeared somewhat defensive and on occasion did not answer questions directly. The plaintiff contends that many of his answers under cross‑examination were unsatisfactory. But I do not accept that. Mr McLean was subjected to a vigorous and confronting cross‑examination by an able and very experienced counsel. He was under pressure to agree with or to say things quite contrary to his evidence‑in‑chief. As can often be the case Mr McLean was faced with questions where a simple answer could be misleading. On some of those occasions his answers did not directly address the question. But I do not consider that he was being untruthful or evasive. He was merely avoiding verbal traps set for him by an experienced cross‑examiner. I accept Mr McLean as a witness of truth. I accept that he was doing his best to answer the questions truthfully while maintaining his case. I am prepared to rely on his evidence.

Duty of care

It is surprising that among the judges of the High Court of Australia there is not an agreed conceptual framework for determining the existence of a duty of care. In Sullivan v Moody (2002) 75 ALJR 1570 five members of the High Court were unanimous in rejecting the three‑stage test for a duty of care now followed in English courts as propounded in Caparo Industries v Dickman (1990) 2 AC 605. In Tame v New South Wales: Annetts v Australian Stations Pty Ltd [2002] HCA 35 all seven members of the High Court discussed general principles of negligence although the principal issue in those cases was the question of the duty of care in cases involving psychiatric injury suffered by plaintiffs. Although there was no unanimity among the judges each reflected in a different way on the touchstone of reasonableness as the guiding principle in determining the existence of a duty of care in negligence.
Gleeson CJ after referring to Donoghue v Stevenson [1932] AC 562 at 580 said:
"It is the reasonableness of a requirement that a defendant should have certain persons, and certain interests, in contemplation, that determines the existence of a duty of care." [9]
Gleeson CJ went on to say at [12]:
"It is important that 'reasonable foreseeability' should be understood and applied with due regard to the consideration that, in the context of an issue as to duty of care, it is bound up with the question whether it is reasonable to require a person to have in contemplation the risk of injury that has eventuated."
In her judgment Gaudron J again referred to Donoghue v Stevenson when she said at [46]:
"Rather, a duty is only owed to those whom Lord Atkin famously described as 'so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question."
In his judgment McHugh J said this: [101]
"I think that the time has come when this Court should retrace its steps so that the law of negligence accords with what people really do, or can be expected to do, in real life situations. Negligence law will fall – perhaps it already has fallen – into public disrepute if it produces results that ordinary members of the public regard as unreasonable. Lord Reid himself once said '[t]he common law ought never to produce a wholly unreasonable result'. And probably only some plaintiffs and their lawyers would now assert that the law of negligence in its present state does not produce unreasonable results.
In their judgment at [185] Kirby and Gummow JJ said:
"A fundamental objective of the law of negligence is a promotion of reasonable conduct that avoids foreseeable harm. In part, this explains why a significant measure of control in the legal or practical sense over the relevant risk is important in identifying cases where a duty of care arises. Further, it is the assessment, necessarily fluid, respecting reasonableness of conduct that reconciles the plaintiff's interest in protection from harm from the defendant's interest in freedom of action. … Moreover, the assessment of reasonableness, which informs each element of the cause of action, is inherently adapted to the vindication of meritorious claims in a tort whose hallmark is flexibility of application. Artificial constrictions on the assessment of reasonableness tend, over time, to have the opposite effect."
Hayne J took a similar approach when he said at [249] and [250]
"The common law of negligence does not provide for recovery for all who suffer negligently inflicted harm. Nor is reasonable foreseeability the only limit upon recovery. As I have pointed out before, the concept of duty of care has a fundamentally important role to play. … As Brennan J said in Sutherland Shire Council v Heyman (1985) 157 CLR 425 at 487: 'a postulated duty of care must be stated in reference to the kind of damage that a plaintiff has suffered and in reference to the plaintiff or class of which the plaintiff is a member'.
'Neighbourhood', 'proximity', the so‑called 'tripartite' test … 'vulnerability', 'general reliance' are all different attempts that have been made to identify a satisfactory means of describing or defining the circumstances in which a duty of care should be found to exist. At least some of these tests have now been rejected as either being insufficiently informative or being inadequate to provide coherence in this area of the law. None has proved to be an all‑embracing explanation for the way in which the law has developed and is developing. But despite these difficulties, what has not been rejected is a more fundamental proposition. As five members of the Court have recently held (in Sullivan v Moody), foresight of harm does not suffice to establish the existence of a duty of care. Or, to put the same proposition in another way, the common law does not provide a remedy for all who suffer negligently inflicted harm, even if the actor could reasonably foresee that carelessness may cause harm of the kind which in fact is suffered. The common law confines recovery to those to whom a duty of care is owed. That is why 'the major problem for any general statement of a negligence principle [is] … that there are large areas in which careless conduct causing injury to innocent parties is not actionable."
Callinan J said this at [331]:
"To say all of this is not merely to recognise, or prescribe special rules to apply to cases of nervous shock. It is also to give effect to the sometimes overlooked touchstone, of reasonableness, in examining and judging a defendant's notional or actual expectations, knowledge and conduct. The criticisms so persuasively made in this case by McHugh J of the departures, in recent years by courts from the touchstone of reasonableness, and the realities of ordinary life, should in future be heeded by all courts."
Very recently in Graham Barclay Oysters Pty Ltd v Ryan: Ryan v Great Lakes Council: State of New South Wales v Ryan [2002] HCA 54 Kirby J commented on the search for a methodology in determining common law liability in negligence and concluded at [240] with the proposal of the following test to determine the duty of care:
"[T]hat liability should therefore be imposed where it was judged that a reasonable person in the defendant's position could have avoided damage by exercising reasonable care and was in such a relationship to the plaintiff that he or she ought to have acted to do so. Despite its overt circularity, this formulation might at least offer a return to the substance of Lord Atkin's speech in Donoghue v Stevenson. It might afford a broad formula that poses a factual (or jury) question and avoids the chaos into which other attempted formulae have lately led the law."
In approaching the issue before me in this case as to whether this defendant owed a duty of care to this plaintiff I rely on the return to a touchstone of reasonableness as discussed in these recent High Court decisions and to the principle enunciated in Donoghue v Stevenson at 580:
"You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour."
But that simple principle is to be understood and applied taking account of the development of the common law in Australia.
The plaintiff relies on the terms of the contract Exhibit 14 as evidence of the existence of a duty of care on behalf of the scaffolder. The contract was a contract between the scaffolder and CIS the plaintiff's employer. That contract was in these terms:
"Thank you for requesting a quotation from Instant Scaffolds WA for the supply of scaffolding to replace sheeting on mock aircraft. It is my proposal that we complete the project in three stages.
(A)Nose of aircraft up to first door (grid line 16). Scaffold to consist of a series of towers each side of the aircraft, linked together beneath and over the top of the aircraft for stability. This scaffold may be mobile if ground permits. Instant Scaffolds WA will also give access across the front window of mock aircraft. The ties across the top of the aircraft will permit workers to tie off with body harnesses so they may, if necessary, stand on top of the aircraft.
(B)First door to wing (grid line 16 – 12.5). If our stock holding permits this position would be completed at the same time as position A, if not then the scaffold on A would be relocated. As per A scaffold would be erected either side of aircraft and linked over the top and underneath.
(C)From edge of wing (approx. grid line 7) up to tail section (approx. grid line 4). Scaffold to be linked above and underneath as per A and B. This position would be completed after positions A and B. Note: Instant Scaffolds WA will endeavour to get workers as close as possible to the workface utilising cantilevers etc. But because of the curvature of the mock‑up and the fact that we will be utilising standard equipment only some areas may require a little extra reach, but at all times, safety will be paramount in the type of system we supply."
The plaintiff also relied on the evidence of Mr Murray McLean, the general manager of the defendant. Mr McLean qualified as a licensed scaffolder in 1983 and has worked in scaffolding ever since not only in Western Australia but also in New Zealand and south east Asia. Prior to entering into this contract with CIS Mr McLean made an on‑site visit which involved a meeting with Mr Bryson, an estimator with CIS. Some discussions took place. Two days later Mr McLean submitted a quote which was eventually accepted and formed the contract Exhibit 12. It was a condition of the contract that only standard off-the-shelf equipment that is frames, braces and tube clips would be used. That condition was imposed by CIS and related to the price.
Instead of commencing with the front A section of the aircraft as contemplated in the contract, CIS required C section to be scaffolded first. On site Mr McLean had contact with the CIS site supervisor Martin Pollock. When the scaffolding had been erected Mr McLean inspected it to ensure all safety features were in place such as handrails. Then because the scaffolding was over four metres in height, it was required by the safety regulations to be "tagged out", that is a handover certificate (Exhibit 13 is an example) was filled out, signed by the CIS representative on site and the tags were placed on the scaffolding at every access point. On the reverse of the tag can be found the requirement under Western Australia's safety regulations "This scaffold must only be erected, altered or dismantled by a licensed scaffolder".
Mr McLean said he completed and installed Stage 1 of Stage C in the tail section and tagged out that section at handover. Once the scaffolding was tagged and handed over to CIS the scaffolders left the site returning periodically when called back by CIS for what Mr McLean described as "remedial housekeeping" such as when handrails had been removed or platforms relocated. When called back the scaffolders put the scaffolding back in its original position.
Mr McLean denied ever being asked by CIS to provide access to the top of the aircraft and denied ever being told the workers were experiencing problems gaining access to the top of aircraft. He denied any knowledge of how CIS intended to go about the job of re-cladding the aircraft. He said he was not sure whether the workers would install the cladding on the top of the aircraft from inside the aircraft or outside the aircraft. He did admit that he assumed they would do it on the outside of the aircraft.
Under cross‑examination Mr McLean admitted that he had designed the scaffolding used on the mock 747 aircraft and admitted that CIS had no input into the design. He admitted the scaffolders were the specialists concerning scaffolding and that CIS had no expertise in that field. Mr McLean also admitted that as per the contract he attempted to get workers as close as possible to the surface of the fuselage by using cantilevers. He admitted that the workers needed to get to the whole surface of the aircraft including the top but he considered the scaffolding would serve as the platform workers would use to reach the various parts of the aircraft. He conceded that when standing on the cantilevered platform there was no way of getting to the top of the aircraft in section B. He denied he ever envisioned that workers would climb off the scaffolding onto the aircraft itself. Mr McLean conceded that there would be problems with reach and those were foreshadowed in the contract. Mr McLean conceded that a worker standing on the cantilevered platform would have had to reach 1‑1/2 to 2 metres to reach the top and that that was not possible.
The plaintiff contended that Mr McLean conceded that he knew that workers had to get to the top to re-clad the aircraft. The plaintiff relies on this series of questions and answers at T299 – 300:
"But you knew they were re‑cladding?‑‑‑Sure.
And you knew they had to get to the top?‑‑‑I knew they had to remove all the cladding and replace it with new cladding. I wasn't party to how they were going to remove or how they were going to replace either inside or outside of the aircraft.
Just answer the question. You knew they had to get to the top?‑‑‑Sure, yes."
In that answer Mr McLean conceded he knew workers had to get to the top to re‑clad but he does not admit that he ever knew whether they would be accessing the top from the inside or the outside of the aircraft.
Mr McLean admitted visiting the site regularly and while there speaking to Mr Pollock and to a Defence Department person but he denied that anyone mentioned any problems with access. Mr McLean denied that he ever contemplated that workers would remove handrails to gain access to the fuselage. Mr McLean said it was illegal to remove any part of a scaffold; there was a $25,000 fine if a person who was not a licensed scaffolder alters a scaffold.
Under cross‑examination about Mr van der Meer's expert opinion that a ramp would have resolved the workers' access problem, Mr McLean denied such a ramp was standard equipment but he admitted he could have made something. Mr McLean admitted that he knew the workers had to get to the top of the aircraft but he did not know whether they were accessing it from the inside or outside of the aircraft.
In re‑examination Mr McLean said his scaffolding was erected to provide a safe platform for workers to access the fuselage confined by safety handrails. If a worker went outside the scaffold as the plaintiff had done Mr McLean said he could do nothing about it.
The only evidence from CIS was that of Mr Bryson, the CIS estimator. After the contract was complete he played no further role and did not visit the site to oversee the scaffolders' work. CIS had a supervisor on site, Mr Pollock, but he was not called to give evidence. The evidence then on which I must determine whether the scaffolder owed a duty of care to the plaintiff is primarily that of the plaintiff, of Mr Bryson and of Mr McLean as well as the terms of the contract. From that evidence I make the following findings of fact:

Findings of fact

1.The plaintiff was employed by CIS. His system of work on site was determined by his employer and conveyed to the plaintiff by Mr Pollock the site supervisor.
2.The plaintiff was able to gain access to the top of the aircraft while re‑cladding section C by stepping onto the top from the cantilevered platform.
3.Once the scaffolding providing access to section C was removed, the plaintiff had difficulty accessing the top of the aircraft in section B because the aircraft was higher and steeper in that section. The only way the plaintiff could reach the top was to remove the handrail from the cantilevered platform and launch himself across grabbing the ladder beam as he went and scrambling up to the top.
4.The plaintiff complained to Mr Pollock. Nothing was done about the complaint. Mr Pollock did not tell Mr McLean or any scaffolder of the problem the workers experienced with accessing the top of the aircraft in section B.
5.Mr McLean visited the site regularly. He was never asked to build a ramp or told of the need to devise a safe means for workers to access the top of the aircraft from outside the aircraft.
6.Mr McLean designed the scaffolding and knew there would be problems with workers reaching all parts of the fuselage because of its shape. Mr McLean knew there was no way of getting to the top of aircraft from the cantilevered platform. He knew that workers had to get to the top to re‑clad the aircraft but he did not know whether they would access the top from inside or outside the aircraft.
7.Mr McLean was never asked to re‑design or modify the scaffolding to bring workers within reach of the top of the aircraft.
8.Neither Mr McLean nor any scaffolder was informed of the system of work CIS had devised for re‑cladding the aircraft.
9.Neither Mr McLean nor any scaffolder was informed that the workers were placing themselves at risk by removing the handrail and leaping across from the cantilevered platform to the top of the aircraft.

The duty of care of a scaffolder erecting a scaffold is analogous to the duty of care of a manufacturer of a product as discussed in Donoghue v Stevenson. A scaffolder's duty extends beyond its contractual obligations. It would be reasonably foreseeable to any scaffolder that if the erection or installation of the scaffold were defective there would be a risk of harm to workers in the position of this plaintiff who used the scaffold to access their worksite. Therefore I accept that the scaffolder was under a duty of care to a class of persons including the plaintiff to erect and install scaffolding which was safe and would not expose the plaintiff to risk and hazard of damage. There is no question that a scaffolder will be liable in negligence to an injured worker who later uses a scaffolding if the scaffolder fails to properly affix the scaffolding and planks become loose and create a gap (Eastcoast Scaffolding Pty Ltd v Young [2000] NSWCA 187). The scaffolder would also be liable if the scaffolding collapsed when a worker stood on it (Complete Scaffolding v Adelaide Brighton Cement [2001] SASC 1999). The duty of care in such cases involves clear and sensible applications of the principle in Donoghue v Stevenson as it has been developed in the common law of negligence.

But the plaintiff in this case does not complain of any fault in the erection or installation of the scaffolding. No part of the scaffolding failed. The scaffolding provided a safe platform for access for the plaintiff to the fuselage. The plaintiff's risk of injury arose entirely from the plaintiff adopting an unsafe system of work. The plaintiff was injured when he removed a portion of the scaffolding (the handrail) in breach of safety regulations, and attempted to launch himself from the scaffolding to the top of the aircraft. I am unable to see how it could be reasonably foreseeable to a scaffolder that a worker in the position of this plaintiff would alter the scaffolding and place himself at risk of harm by undertaking such a dangerous manoeuvre.
The plaintiff complains that the scaffold was defective in its design because it did not enable safe access to the top of section B on the outside of the aircraft and further contends that the obligation to provide a safe scaffold with safe reach and with safe access lay with the scaffolders. As specialist scaffolders the plaintiff contended that they had the knowledge and the ability to enable safe access to the top of section B and had already breached their duty of care when the scaffolding was tagged. I note, however, that this final submission is somewhat at odds with the plaintiff's cross‑examination of Mr McLean who was brought to task for failing to visit the site to see how far the reach was for the workers from the scaffold (T291).
These submissions on behalf of the plaintiff concerning the design of the scaffold raise the issue of design warranty as discussed in Voli v Inglewood Shire Council (1963) 110 CLR 74. In Voli's case an architect had designed a public hall utilising floor joists which proved to be inadequate to bear the number of people who might be expected to assemble there. The floor failed and the plaintiff was injured. In Voli'scase Windeyer J considered the relationship between the architect's contract with the builder and the architect's duty of care in negligence: (at 85)
"First, neither the terms of the architect's engagement, nor the terms of the building contract can operate to discharge the architect from a duty of care to persons who are strangers to those contracts. Nor can they directly determine what he must do to satisfy his duty to such persons. That duty is cast upon him by law, not because he made a contract, but because he entered upon the work. Nevertheless his contract with the building owner is not an irrelevant circumstance. It determines what was the task upon which he entered. If, for example, it was to design a stage to bear only some specified weight, he would not be liable for the consequences of someone thereafter negligently permitting a greater weight to be put upon it."
In this case the terms of the contract show that the task undertaken by the scaffolder was to get workers as close as possible to the workface utilising cantilevers. The only reference in the contract to access to the top of the aircraft related to the ties across the top of the aircraft which would permit workers to attach body harnesses so that they may "if necessary" stand on top of the aircraft. There is no mention of how the workers would get to attach their harnesses. In my opinion no obligation to provide access to the top of the aircraft from the scaffolding can be inferred from those terms. Those terms support the scaffolder's contention that it did not know how the re‑cladding was to be accomplished. The scaffolders were not privy to the employer's system of work.
The contract contains the added limitation inserted by the employer for cost reasons that the scaffolder utilised standard equipment only. I accept Mr McLean's evidence that a cantilevered ramp as recommended by Mr van der Meer could well have been provided but such a ramp was not standard equipment and was not part of the design the scaffolder undertook to provide pursuant to the contract. The terms of the contract mention that some areas may require "a little extra reach". I find nothing in the terms which supports the plaintiff's contention that the scaffold was defective. I am satisfied the scaffold's design met the purpose for which it was erected as stipulated in the scaffolder's contract.
I accept that the scaffolders placed a wire along the spine of the aircraft to which lanyards and safety harnesses could be attached and, I accept it would be reasonable for the scaffolders to foresee that the workers would need access to the top of the aircraft in order to attach their safety harnesses (if any were provided by their employer). But that does not overcome the scaffolders' lack of knowledge of the CIS system of work. The scaffolder did not know whether the top would be accessed from inside or outside of the aircraft. I do not accept that it would be reasonable to expect a scaffolder to make enquiries to ascertain the CIS system of work. After all, the scaffolder designed and installed the scaffolding and handed it over to CIS when it was tagged out. If the CIS system of work required workers to access the top of section B from the cantilevered platform outside the aircraft then that was a matter for CIS to draw to the attention of the scaffolders. The plaintiff complained to his employer, CIS, about the difficulties with access. The matter was never mentioned to the scaffolders. In these circumstances I do not accept the plaintiff's submission that the scaffold was itself defective. There was no fault in its erection or installation. It would not be reasonable for the scaffolders to foresee the dangerous system of work adopted by CIS.
For these reasons I am not satisfied that the scaffolders owed a duty of care to the plaintiff in relation to this injury. It is not reasonable in this case to require the scaffolder to have in contemplation the risk of injury experienced by the workers (Tame's case per Gleeson CJ at [12]). I am satisfied that the scaffolder was not in such a relationship with the plaintiff that he ought to have acted in these circumstances (Ryan's case per Kirby J at [240]). If the plaintiff's system of work required him to have access from the cantilevered platform to the top of the aircraft and if there was no safe access provided by the scaffold I do not consider it would be reasonable to expect the scaffolder to either know of that or to visit the site and learn of that. The system of work is the responsibility of the employer. Part of the safe workplace provided by the employer is the scaffolding. If the defendant had been asked by CIS to provide access to the top of the aircraft or the outside of the aircraft I have no doubt that it would have done so. In this case I am not satisfied that the relationship between the defendant and the plaintiff is one that would in these circumstances give rise to a duty on the part of this defendant to monitor the system of work and to prevent this plaintiff from engaging in such a dangerous procedure. The touchstone of reasonableness as discussed in Tame's case and the test for determining whether the defendant owes the plaintiff a duty of care does not require it.
For these reasons I am satisfied that the defendant did not owe the plaintiff a duty of care in respect to the injuries suffered in this accident and, therefore, the plaintiff's claim in negligence fails.

Provisional assessment of damages

Medical treatment

On the day of the accident, 19 June 1997, the plaintiff gave evidence that he was very shaken by his experience. He felt something give in his shoulder and in his lower back, and he climbed down off the aircraft and did not work for about an hour. The plaintiff said he mentioned his accident to Martin Pollock, his employer's representative. The plaintiff was back at work the next day and believed he had a pulled muscle and simply carried on but, as the days went by, he said the pain became worse and worse in his back and shoulder and the pain began to run down his arm and up into his neck. He said it was not constant, but it became worse and worse and he let his employer know about it. Eventually, the plaintiff said the pain got so bad that he was sent to Dr Joel Silbert, a specialist in occupational medicine, who worked with Prime Occupational Health. Dr Silbert issued the first medical certificate on 25 August 1997 (Exhibit 6). On that certificate, Dr Silbert noted that the plaintiff suffered "pain in his back and left arm/shoulder". Dr Silbert went on to make a clinical diagnosis of "left supraspinatus and left lumbo sacral L5/S1 strain". Dr Silbert declared the plaintiff totally unfit for two days and partially unfit to the extent that he was not to lift anything heavier than five kilograms or do any repetitive bending of his back or work above shoulder height with his left arm. Dr Silbert treated the two conditions, that is, the shoulder and the lower back, separately. He commenced conservative management of the shoulder including the use of anti‑inflammatory medication, pain relief, physiotherapy, modification of activities and close review. An x‑ray and ultrasound revealed impingement of the shoulder and spondylolisthesis at the L5/S1 level.
By the time Dr Silbert saw the plaintiff on 3 November 1997, he reported that the plaintiff's back was 95 per cent of normal, but his shoulder was still causing aches and pains and weakness secondary to the pain. However, on 1 December, when Dr Silbert saw the plaintiff, he noted that his back had been stirred up for the last three or four days for no particular reason, that the aggravation had come with extension of the back and he noted that the left shoulder was getting worse. A further ultrasound was ordered. The ultrasound showed ongoing impingement of the shoulder and Dr Silbert referred the plaintiff to Mr Jeffrey Ecker on Monday, 15 December 1997 for assessment. I should note that the plaintiff had taken no time off work.
Mr Ecker is an orthopaedic surgeon who specialises in upper limb injuries. He saw the plaintiff on 15 December 1997 and, after examination and taking a history, noted:
1.painful arch with dysrhythmia; and
2.weakness of active external rotation against resistance.
Passive internal and external rotation with the shoulder held at 100 degrees produced a marked "click" crepitus and discomfort. Mr Ecker noted a full range of pain free neck movement. Under cross‑examination, however, Mr Ecker confirmed that he did not perform the test for Stensen's Sign. Mr Ecker concentrated on the shoulder and his test of the neck involved only extension and lowering of the head and turning the head from side to side. It did not include the test for the Stensen's Sign, which required simultaneous turning and lifting of the head.
As a result of his investigations and examinations, Mr Ecker decided to perform an arthroscopic subacromial bursectomy including debridement of the long tendon of the biceps, decompression of the acromion and the inferior acromio clavicular joint and removal of the osteophytic excrescence on the tip of the acromion. Mr Ecker performed the surgery on 13 January 1998. It involved a general anaesthetic and scraping the bone to make more room for the plaintiff's shoulder to move. It is a non‑invasive form of surgery so that the plaintiff was immediately able to move his shoulder without a sling and make a rather quick and rapid recovery. Two weeks after the left shoulder procedure, the plaintiff had regained approximately 80 per cent of his range of motion. Within five weeks to six weeks, the plaintiff had nearly regained a full range of motion in his left shoulder. His abduction was limited to 170 degrees and, according to Mr Ecker, he was doing extremely well. After three months, the plaintiff returned to work and, when he saw Mr Ecker on 27 May, four months after the procedure, he was still making good progress. There was no crepitus on passive internal and external rotation. At that point, Mr Ecker told the plaintiff to have a review in six months, but he could cancel that appointment and wait 12 months if there were no problems.
The plaintiff's recovery was short‑lived. In November 1998, the plaintiff reported that he had pain in what Mr Ecker considered an atypical shoulder distribution. The pain was over the apex of his shoulder and radiated down the medial side of his arm. At the time Mr Ecker saw the plaintiff, the plaintiff had lost his job when CIS became insolvent and had commenced other employment. By November 1998, the plaintiff's active abduction was limited to 90 per cent, although he still had a full range of passive motion without crepitus. Mr Ecker did note, however, that there was no muscle wasting.
Mr Ecker gave evidence that from that point on, the plaintiff's presentation was atypical and his pain simply did not fit in with the diagnosis and treatment that had been provided. Mr Ecker said in his experience, when people lose their employment, this sort of reaction can occur. It is mal‑adaptive behaviour, sometimes associated with depressive illness and somatisation of the injury.
Mr Ecker finally reviewed the plaintiff in April 1999 and reviewed his progress and summarised his position. In summary, Mr Ecker said:
"Mr Miller injured his left shoulder as outlined above. He presented with a painful arc and subacromial impingement. Clinically and on imaging studies it would appear that his impingement syndrome has resolved. Despite this, he is complaining of severe pain in the left side of his neck radiating into his left upper limb. There is marked discrepancy between the active and passive range of motion demonstrated in his shoulder and the stated clinical symptoms in the presence of normal muscle bulk and power. In my opinion, Mr Miller has had a subacromial impingement syndrome which has been treated by a decompressive acromioplasty. He does have some residual problems with the left shoulder as evidenced by the continued changes in his rotator cuff. The pain that he is experiencing in the left side of his neck and radiation into his left upper limb into his hand cannot be explained on the basis of his shoulder symptoms alone."
Mr Ecker found that the plaintiff had a 15 per cent permanent disability to his left upper limb and that was quite apart from the atypical symptoms. He referred the plaintiff back to his general practitioner, Dr Silbert, so that the neck could be reviewed by an appropriate specialist.
Dr Silbert reviewed the plaintiff on 31 May 2000. After examining the plaintiff, Dr Silbert found that the nature and extent of any cervical pathology had not been determined and, furthermore, "the relationship between the reported symptoms and the injury sustained in 1997 has not been established. It may well be considered coincidental the cervical and left upper limb symptoms are present. These may be due to unrelated pathology or symptomatic cervical spondylosis."
Mr Barrie Slinger, spinal surgeon, reviewed the plaintiff on 24 July 2001. Mr Slinger found that, at present, pain persisted in the plaintiff's neck radiating to the base of the neck, proximally to the head, distally to the left shoulder, along the medial aspect of the left upper limb and, if pain is severe, to all the fingers of the left hand. Mr Slinger found that his major problem at that time was his neck, rather than his shoulder.
Mr Slinger found that the history of injury that had been described to him by the plaintiff was consistent with a soft tissue injury to the left shoulder which, presumably because of its severity, overshadowed the symptoms in his neck which have subsequently increased since treatment has been directed to the shoulder. In Mr Slinger's opinion, it was likely that in the accident, the plaintiff sustained an injury to the left shoulder as well as the cervical spine. Mr Slinger considered the plaintiff fit to return to at least part‑time employment, four hours to six hours a day, four days to five days a week, so long as the work did not require him to lift anything heavy or work predominantly using the left upper limb. Such suitable employment would include light courier driver, chauffeur without the need to carry luggage, light storeperson, console operator or in his present employment in a distributorship.
Mr Slinger gave his opinion that pain can be experienced about the shoulder in respect to the neck and the shoulder. Mr Slinger conceded that he had not seen him at the time and that Mr Ecker's reports refer to the shoulder. Mr Slinger did concede however, that if a person had suffered an acute soft tissue injury to the neck in the accident in June 1997, he would have expected some restriction of movement. At the same time, Mr Slinger believed that the shoulder pain could be referred pain from the neck. If he was having the severe problem he is having now, Mr Slinger expected that he would have had some restriction of neck movement at the time of the accident or soon thereafter.
The plaintiff was also reviewed by Professor Mastaglia, the consultant neurologist, on 6 September 2001. Professor Mastaglia performed the Stensen's Sign test, that is, simultaneous neck rotation to the right and extension. This gave rise to pain radiating into the left suprascaprial area and down into the left arm and into the medial two fingers of the left hand. Professor Mastaglia said this was a specific finding in neurology and is called Stensen's sign. Professor Mastaglia said that the symptoms of the plaintiff point exactly to what is happening to the C7 nerve root, that is, there must be something in the neck stretching or irritating or pressing on an abnormally sensitive C7 nerve root. He also found weakness of elbow extension, which is again a C7 nerve root function and he found a depression of the triceps reflex, which is again a C7 reflex.
Professor Mastaglia conceded that the MRI and EMG findings were within normal limits. However, Professor Mastaglia noted that the study, that is, the EMG, is not sufficiently sensitive to rule out a mild degree of C7 or C6 nerve root dysfunction as suggested by the plaintiff's symptoms and clinical findings.
Under cross‑examination, Professor Mastaglia said that despite the predominant pain being centred around the shoulder initially, in the suprascapular area, it was his experience that pain is not confined to just one area, but often is more diffused and encompasses both the shoulder, the suprascapular area and the lower cervical areas and often patients just interpret that as one big pain.
Under cross‑examination, Professor Mastaglia said that his only reservation concerning Mr Ecker's work was that Mr Ecker may not have tested for the Stensen's Sign. Professor Mastaglia particularly noted that on initial review by Dr Silbert, Dr Silbert reported a pain in the supraspinatus muscle, which is the highest muscle in the supra scapular area. Professor Mastaglia reported it is the muscle at the top of the shoulder blade that spans the area between the shoulder and the lower part of the neck. It is quite a wide muscle and pain in that area could be due to an injury to the muscle itself, but is more often due to pain referred from the neck. Professor Mastaglia said that very often, patients with a neck problem or a disc injury in the neck or a neck injury will say, "The pain is there", and they point to the supraspinatus muscle rather than pointing to the neck. Professor Mastaglia said that if Dr Silbert referred to pain in the supraspinatus area, he would regard that as more likely to be of neck origin than arising from the shoulder joint. Professor Mastaglia conceded, however, that he did not think we could be sure about these matters. Professor Mastaglia also conceded in cross‑examination that a complaint of a headache was a new symptom, but it did not surprise him because he had seen it commonly in many patients with a chronic neck problem, that the pain intensifies over time and may spread and be associated with headaches.

Finally, Professor Mastaglia said that the fact that the plaintiff complained at an early stage of arm pain is, in retrospect, very significant because it would imply that the most likely explanation was that the pain had a cervical origin.

The neck injury

The first issue on the provisional assessment of damages is whether the plaintiff's C-7 neck injury was caused by the accident. Mr Ecker noted a full range of pain‑free neck movement when he examined the plaintiff on 15 December 1997 some six months after the accident. The plaintiff's first specific complaint of neck pain was not made until 28 April 1999 some 22 months after the accident. In these circumstances the defendant contends that the plaintiff's damages should be assessed based on his shoulder and low back injuries with no account taken of his C-7 neck injury.
After carefully considering the medical evidence I am persuaded on the balance of probabilities that the plaintiff did suffer the neck injury at C‑7 in the accident. I base my finding on Professor Mastaglia's evidence which I found to be both thorough and persuasive. Although Professor Mastaglia did not review the plaintiff until 6 September 2001 he did test the plaintiff for Stensen's sign and his results were positive. I consider that to be an independent, objective and specific finding. I accept Professor Mastaglia's evidence to the effect that patient's often interpret their symptoms as one big shoulder pain when in fact the pain encompasses not only the shoulder but also the lower cervical and suprascapular area. Professor Mastaglia's opinion is supported by Dr Silbert's initial report of complaints of pain in the supraspinatus muscle and pain in the arm. Professor Mastaglia's opinion is also supported by that of Mr Slinger. Mr Ecker admitted that he did not perform the test for Stensen's sign in 1997. I accept Professor Mastaglia's evidence that despite Mr Ecker's finding of a full range of pain‑free movement in the neck on initial examination that without testing for Stensen's sign the neck injury could have been overlooked. Mr Ecker was of course an orthopaedic surgeon specialising in upper limb injuries, not in spinal injuries. I have already given my reasons for accepting the plaintiff as a witness of truth. I accept his evidence that the pain in his neck and his arm were there from the beginning and just developed and became more frequent after his shoulder problems resolved. For these reasons I provisionally assess damages on the basis that in the accident the plaintiff suffered injuries to his left shoulder, lower back and at level C‑7 of the cervical spine.

Loss of earning capacity

After losing his employment with CIS in 1997 the plaintiff tried a variety of alternative occupations in an effort to support himself. In November 1998 he purchased a limousine business for $80,000. Because of his shoulder and neck injuries he experienced some difficulty in lifting luggage in and out of the boot for his customers and, in May 1999, he sold that business losing $2,000 to $3,000 on the sale. After that he purchased a courier business but sold it after three months at the end of 1999. During this time the plaintiff telephoned and went to a few of the larger insulations companies and applied for work but never received any replies.
The plaintiff described his neck and shoulder symptoms as bad during calendar year 2000. He said he was not capable of working. In August of 2000 he and his wife took on the distribution of a new diet tablet. That work lasted 12 months before the company went into liquidation. Following that the plaintiff and his wife took on the distribution of Oxyvital products, work they continue to be involved in to this day. That work is not very financially rewarding and the plaintiff and his wife had recently taken on 22½ hours of work each week in the early morning cleaning the primary school at Canning Vale.
As part of his case the plaintiff called Mr Jock Ferguson, the State Secretary of the Australian Manufacturing Workers Union. Mr Ferguson said the greatest demand for sheet metal workers is in the oil industry including construction and maintenance projects on the north west shelf where the basic rate is $23 an hour and upwards. The demand for such workers is less and base rates are less in the mining industry where workers start at around $20 per hour. Outside the metropolitan area sheet metal workers usually work a minimum of 54 hours per week. In the metropolitan area the basic wage is $14 per hour for sheet metal workers but Mr Ferguson said few companies pay the basic award rate because they require skilled experienced labour. Mr Ferguson said that workers experienced in the insulation industry are paid as sheet metal workers even if they are not certificated. Mr Ferguson indicated that there has been a chronic shortage of laggers and sheet metal workers experienced at cryogenic (very low temperature) lagging. The shortage of very experienced workers has led companies to employ from overseas and to train workers in the trade. In the metropolitan area Mr Ferguson said that despite a depression in the industry over the past few years sheet metal workers remained in demand because maintenance needed to be carried out.
The defendant relies on the evidence of Mr Brandis the psychologist involved with Prime Rehabilitation in the plaintiff's rehabilitation programme. Mr Brandis assessed the plaintiff on 27 March 1998 and then oversaw the plaintiff's return to work for CIS with restrictions on working above shoulder height. After the plaintiff was laid off by CIS Mr Brandis offered him two weeks job seeking skills training but the offer was not taken up by the plaintiff. Instead the plaintiff turned to alternative employment in the limousine business and Mr Brandis closed his rehabilitation file in early October 1998. The defendant submitted that the plaintiff had not made any real effort to find employment in the sheet metal industry and that therefore no evidentiary burden has shifted to the defendant to show what alternative employment opportunities were available to him (Thomas v O'Shea (1989) A Tort Rep 80-251). The defendant suggested that the plaintiff's efforts to obtain employment in the sheet metal industry were "meagre" and that he has failed to prove that any financial loss was suffered due to his reduced earning capacity (Ta v Lucky Import and Export Co Pty Ltd (2002) WASCA 65 per Pullin J at [26].
I do not accept the defendant's submission. I accept the plaintiff's evidence that he did contact the larger insulation companies looking for work as a sheet metal worker. The evidence of Dr Silbert and of Mr Ecker confirm the plaintiff's evidence that despite his good recovery following shoulder surgery his serious problems with his neck worsened during this period. It is not surprising that the plaintiff decided to venture into small businesses instead of pursing employment as a sheet metal worker when he well knew that his injuries prevented him from work above shoulder level. I am satisfied that as a result of the injuries the plaintiff could no longer compete for employment as a sheet metal worker. He has proved to be quite unlucky in his small business endeavours but I accept that the only reason he ventured into those businesses was his need to support himself financially when work as a sheet metal worker was no longer open to him because of his injuries.
For these reasons I am satisfied that the plaintiff's financial losses are as a result of his accident‑caused incapacity. He has impressed me as a man eager to get on with it. There is no suggestion of any failure to mitigate his loss or effort to avoid work.
There is no dispute that immediately prior to the accident the plaintiff earned a net weekly average of $536 per week. Based on Mr Ferguson's figures the plaintiff contends that a sheet metal worker's present net weekly income would be $806 per week and that the plaintiff's loss of earning capacity should be calculated at an average rate of $700 net per week over the period of more than five years since the accident.
I am not persuaded that the plaintiff's loss of earning capacity should be calculated at $840 gross per week and $700 net per week as suggested by the plaintiff. Those figures are considerably greater than the plaintiff's pre‑accident earnings of $536 net per week. The plaintiff has relied on Mr Ferguson's evidence of rates of pay in the oil industry on the north west shelf when the plaintiff gave no evidence of ever working in that area. I believe a calculation based on $550 per week net and $700 per week gross would be more reasonable and would properly reflect the plaintiff's position as an experienced sheet metal worker in the metropolitan area. I also note that contrary to Mr Ferguson's evidence of sheet metal workers being in demand, the plaintiff gave evidence that the sheet metal industry was up and down. The plaintiff has personal experience of two or three "downs" having been laid off in 1993 by United Insulation and then, again being laid off by CIS in 1998. On both occasions he turned to alternative less profitable employment to tide him over.
In Australia a plaintiff is compensated for loss of earning capacity and not for loss of earnings (Medlin v State Government Insurance Commission (1995) 182 CLR 1 at 4). Nonetheless no damages can be recovered for loss of earning capacity unless that loss is productive of financial loss (Graham v Baker (1961) 106 CLR 340 at 347). In this case the plaintiff concedes that account needs to be taken of the principles discussed in Husher v Husher (1999) 197 CLR 138 at 149 concerning adjustments made in business earnings for tax purposes. It is important that such tax deductions for intangible items do not distort the real earning capacity of the plaintiff.
For 291 weeks at $550 net per week the plaintiff would have earned $160,050. I accept the plaintiff's calculations and reduce that figure by $70,068 being the plaintiff's net actual and notional earnings during that period. Therefore I provisionally award $89,982 for past loss of earning capacity.
Interest on past loss of earning capacity for 5.6 years at 3 per cent = $15,117.
Past loss of superannuation is calculated at 8 per cent of the plaintiff's total gross ($700 per week x 291 = $203,700) less the plaintiff's notional actual gross earnings of $83,121 = $120,579. 8 per cent of that figure is $9,646.32 for past loss of superannuation.
The Fox v Wood (1981) 148 CLR 438 component is agreed at $3,167.38.
Total past medical expenses are agreed at $17,842.77.
Total past rehabilitation expenses are agreed at $4,040.

Future loss of earning capacity

The plaintiff intends to work to age 65. In assessing his future loss of earning capacity I take into account that I am assessing loss during the last nine years of the plaintiff's working life as a sheet metal worker. The evidence in this trial shows that such work is physically demanding and would necessarily be physically challenging to a person the age of this plaintiff. On the other hand I found the plaintiff to be personable and well presented. I find it surprising he and his wife have ended up working in such low paid enterprises. There is no reason to expect his disproportionate share of bad luck in business will continue. Taking those factors into account I accept that a total deduction of 30 per cent for contingencies would be appropriate and reasonable. The multiplier is 365.5 for 9 years x $550 per week less 30 per cent = $140,718 for future loss of earning capacity.
Loss of future superannuation is calculated at 9 per cent on gross income of $700 x 365.5 = $255,850. I deduct 30 per cent for contingencies and I deduct an additional 30 per cent in accordance with Jongen v CSR Ltd & Anor (1992) A Tort Rep 81-192. The total is $11,283 for loss of future superannuation payments.

Pain, suffering and loss of amenity

I accept the plaintiff's evidence of the pain he has suffered in his neck, shoulder and low back as a result of the injuries he suffered in the accident. Although his low back injury resolved it is apparent that he aggravated it during the first year after the injury. His shoulder injury was extremely painful for him. That recovered well after surgery but since then his symptoms have deteriorated and the C‑7 neck injury now causes him considerable pain and discomfort. I accept his evidence that his only respite is to take Panadeine and Panadol and to lie down and to sleep it off.
The plaintiff has always played golf and continues to. I accept his evidence that his injuries have now increased his handicap from 4 to 15. He can no longer manage 18 holes without pain although he seems to get by with nine holes of golf.
Despite the pain the plaintiff suffers I accept that he has made a good recovery from his shoulder injury and has been able to work in a number of occupations. All of those increase the amenity of his life. In these circumstances I agree with the defendant that a modest award for general damages is appropriate. I provisionally award $25,000 for pain, suffering and loss of amenity.

Summary of provisional damages award

Past loss of earning capacity  $89,982.00
Interest$15,117.00
Past loss of superannuation  $9,646.00
Fox v Wood component  $3,167.00
Past medical expenses  $17,843.00
Past rehabilitation expenses  $4,040.00
Future loss of earning capacity  $140,718.00
Future loss of superannuation  $11,283.00
Pain, suffering and loss of amenity  $25,000.00
Total provisional award of damages  $316,796.00