Nikola Boric v M. Vujinovic & Anor t/as Drina Carpentry

[2007] NSWDC 142

CITATION:	Nikola Boric v M. Vujinovic & Anor t/as Drina Carpentry [2007] NSWDC 142
HEARING DATE(S):	7,8,9,12,13, and 15 February 2007
JUDGMENT DATE:	20 April 2007
JURISDICTION:	Civil
JUDGMENT OF:	McGrowdie ADCJ
DECISION:	(1) Judgment for the plaintiff against the defendants in the sum of $475,008. (2) Order that the plaintiff’s costs are to be paid by the first defendant on the one part and by the second to fifth defendant’s on the other; (3) Judgment for the cross-claimant on the first cross-claim against the cross- defendant in the sum of $173,266 with each party to bear it’s own costs; and (4) Judgment for the cross-claimant on the second cross-claim against the cross - defendant in the sum of $96,000 with each party to bear it’s own cost’s.
CATCHWORDS:	NEGLIGENCE - Personal Injury - Liability for injury on construction site - Apportionment between occupier and employer - Assessment of Damages under Civil Liability Act, 2002 and Workers Compensation Act 1987 - Application of s.151Z(2) of Workers Compensation Act 1987 - Steps involved.
LEGISLATION CITED:	Law Reform (Miscellaneous Provisions) Act 1946, s 5 Workers Compensation Act 1987, s151Z(2) Civil Liability Act 2002 Occupational Health & Safety Act 2000
CASES CITED:	Thompson v Woolworths (Q'land) Pty Limited [2005] HCA 19 Stevens v Brodribb Sawmilling Company Pty Limited (1986) 160 CLR 16 Kolodziejczyk v Grandview Pty Ltd [2002] NSWCA 267 Rockdale Beef Pty Limited v Carey (2003) NSWCA 132 Wyong Shire Council v Shirt ((1980) 146 CLR 40 Mambare Pty Ltd t/as Valley Homes v Rebecca Irene Bell (in her capacity as Administratrix of the Estate of the late Simon James Bell) & Anor [20006] NSWCA 3122 Matchan v Lyons [2003] NSWCA 384
PARTIES:	Nikola Boric - plaintiff Milan Vujinovic & Olivera Vujinovic t/as Drina Carpentry - 1st defendant Anthony Clark, Pamela Clark, Daniel Clark & Paul Clark - 2nd to 5th defendants
FILE NUMBER(S):	4507/05
COUNSEL:	Mr. J Jobson for the plaintiff Mr. L Morgan for the 1st defendant Mr. G Parker for the 2nd to 5th defendants
SOLICITORS:	Milicevic Solicitors for the plaintiff McCulloch & Buggy for the 1st defendant Ebsworth and Ebsworth for the 2nd to 5th defendants

JUDGMENT

BACKGROUND

1. The plaintiff, Nikola Boric, was born on 28 December 1947 and is 59 years of age. He lives in the Sydney suburb of Warwick Farm.

2. He commenced proceedings in the District Court by way of an Ordinary Statement of Claim filed 19 October 2005. He proceeds on an Amended Statement of Claim filed 11 August 2006.

3. The plaintiff claims damages as a result of a fall from a height of about 5 metres on 7 September 2002 whilst he was working for the first defendant as a formwork carpenter on a building project managed by the second to fifth defendants in Henry Lawson Drive at Picnic Point.

4. As a result of the fall, the plaintiff suffered various injuries including injury to the left shoulder and fractures of the left elbow and the left side of the pelvis.

5. The first defendant, Drina Carpentry, was a business carrying out formwork carpentry and was operated by Milan Vujinovic in partnership with his wife. The second to fifth defendants, being a partnership of Anthony Clark, his wife and two sons, traded as A.D. Clark & Co.

6. A.D. Clark & Co were the occupiers of the site at Picnic Point where it was developing the site in two stages for the building and construction of 13 townhouses and 1 villa in Stage 1 and 12 townhouses and 1 villa in Stage 2.

7. Drina Carpentry was engaged by A.D. Clark by way of a verbal contract to carry out the roof carpentry for the sum of $84,500.00, and David Clark, who was acting as the site supervisor, noted it in his diary on 29 July 2002 (Ex 1).

8. The plaintiff was engaged by Drina Carpentry. It was alleged in the Amended Statement of Claim that the plaintiff was an employee. This was denied by Drina Carpentry in its Defence. However, in the course of the proceedings, Drina Carpentry conceded that the plaintiff was working as its employee rather than as a contractor. The plaintiff was paid workers compensation by Drina Carpentry and this was continuing as at the date of the hearing. Compensation is payable, however, not only to employees, but also to contractors who come within the “deemed worker” provisions of the compensation legislation.

9. A.D. Clark & Co made no concession that the plaintiff was the employee of Drina Carpentry.

10. The plaintiff alleges negligence on the part of Drina Carpentry and A.D. Clark & Co. The particulars of negligence relied upon are:

(a) Failure to institute and maintain a proper system of work.
(b) Failure to provide a stable work platform.
(c) Failure to erect scaffolding to protect the plaintiff from falling.
(d) Failure to provide harnesses so as to protect the plaintiff from falling.
(e) Failure to warn the plaintiff of the dangers of climbing to the second level of a construction site.
(f) Failure to supervise the plaintiff.
(g) Placing the plaintiff at risk of injury when the defendants knew or ought to have known that the plaintiff could suffer injury, loss and damage.
(h) Res ipsa loquitur.

11. The defendants initially denied liability and in the alternative, relied on contributory negligence. Early in the proceedings, an admission of liability was made by Drina Carpentry. Drina Carpentry, however, did not abandon reliance on contributory negligence but ultimately made no submissions to support the allegation.

12. By way of cross-claim, and in the event that the defendants are found liable to the plaintiff, Drina Carpentry seeks from A.D. Clark & Co:

(a) indemnity and/or contribution pursuant to Section 5 of the Law Reform (Miscellaneous Provisions) Act, 1946 (the LR (MP) Act) and

(b) indemnity pursuant to Section 151Z(1)(d) of the Workers Compensation Act, 1987 (the WC Act) in respect of the workers compensation payments made by Drina Carpentry to the plaintiff.

13. By way of cross-claim, namely the second cross-claim, A.D. Clark & Co seeks from Drina Carpentry, in the event that the defendants are found liable to the plaintiff, indemnity and/or contribution pursuant to Section 5 of the LR(MP) Act.

14. Subject to the Court being satisfied that the provisions relating to common law remedies by workers in Part 5 of the WC Act apply to the plaintiff, any damages recoverable by the plaintiff from Drina Carpentry are to be under Division 3 of Part 5 of the WC Act.

15. Any damages recoverable by the plaintiff from A.D. Clark & Co, subject to Section 151Z(2) of the WC Act, are to be assessed under the Civil Liability Act, 2002 (the CL Act).

16. The hearing of the matter commenced on 7 February 2007 and continued on 8, 9, 12, 13, 14 and 15 February when the hearing concluded.

THE PLAINTIFF

17. The plaintiff gave evidence that he was born in Bosnia and left school at age 15. He did an 8-month course in general building construction and worked for a construction company. Thereafter the plaintiff performed military service followed by factory work, building work, operated a truck, and, worked as a postman. He came to Australia in 1997 at the age of 28 with little in the way of finances. He had limited command of the English language. In early 1998 he obtained work through the Serbian community doing carpentry work at $80.00 per day for Rade Timotic of St John’s Park Carpentry six days per week except when raining.

18. This lasted for about a year or so. The plaintiff then did about 3 months work as a casual carpenter for Drina Carpentry which at that time was operated by Milan Vujinovic in partnership with Milan Aleksic. He was paid $120.00 per day to work when required on different projects.

19. The plaintiff said he again obtained building carpentry work with Mr Timotic from about mid 2000 until late 2001 and was paid $600 net per week as an employee.

20. From late 2001 until about mid 2002 he worked for Pliva Carpentry and then for Mr Saculic in August 2002 earning $140.00 per day plus GST.

21. The plaintiff started working for Drina Carpentry in late August 2002 about 2 weeks before his fall. The plaintiff commenced this work at the Picnic Point site.

22. He was attracted to work for Drina Carpentry because Mr Vujinovic, according to the plaintiff, had promised that he would be permanent and registered as an employee. The plaintiff explained that Drina Carpentry always had plenty of work and that Mr Vujinovic required a regular worker to be available to which he could add casual workers as necessary. According to the plaintiff, Mrs Vujinovic was to attend to whatever paperwork was required for the taxation department for the purposes of having the plaintiff as an employee. The plaintiff was to be paid $180 gross per day and was to work 6 days per week.

23. Despite the plaintiff making enquiry of Mr Vujinovic as to the progress of whatever had to be done by Mrs Vujinovic, nothing had been put in place by the time the plaintiff had his fall.

THE INJURY

24. On Saturday, 7 September 2002, the plaintiff was directed to trim the overhang of 3 roof rafters on the roof level of the 2 storey No. 4 townhouse that was under construction.

25. Milan Vujinovic had been trimming rafters to complete what was being done whilst Mr Vujinovic went out to his vehicle. The plaintiff had been working below. The external brickwork of the townhouse had been completed. The ceiling joists for the upper level had been completed and the framework for the roof had been partly completed.

26. The process of trimming the rafters or as it is otherwise known, tailing the rafters, is to reduce the length of the pitched roof rafters as they extend beyond the perimeter of the building so as to give the rafters the desired degree of overhang in a uniform way and with a particular angle of cut at their end.

27. The plaintiff climbed a ladder which was within the building on the floor of the upper level to take him to the top of the perimeter wall. A co-worker passed a circular saw to him and the plaintiff mounted the wall which was the inner skin of a cavity wall and which was capped with a timber plate, the same width as the bricks. The outer skin of bricks of the double brick cavity wall stopped short of the height of the inner skin to allow for the construction of the eaves.

28. There was a dividing wall between this townhouse and the next. Near to this wall and within the adjoining perimeter wall of townhouse No. 4, was an opening for a window with a frame in place. Above this frame was a lintel bar on which stood a course of block bricks which probably were equivalent in height to two bricks and on top of this was a course of bricks of regular height. The effect of this was that this short section of the wall above the window frame stood about the height of 3 bricks above the height of the wall on the other side of the window opening where the plaintiff first stood after climbing the ladder.

29. What is described above can more clearly be seen in Photo No. 1 which is part of Ex L. It is of townhouse No. 3 which is identical in design to townhouse No. 4.

30. The brickwork above the window was not structurally tied into the dividing wall or at all. It stood on the lintel and was held with mortar.

31. The section of wall that the plaintiff initially stood on was a section of the perimeter wall that lay between the open window frame referred to and an opening for balcony doors. The brickwork above the balcony door opening was also higher than the brickwork upon which the plaintiff first stood.

32. The three rafters that the plaintiff had to cut rested atop the section of wall between the window opening and the balcony opening. This section was something over a metre with one rafter abutting the window opening and another abutting the door opening, with the third in the middle. The space between each of the rafters was less than 500mm.

33. The plaintiff knelt and cut the first rafter, presumably the one furthest from the window. He then stood. In order to position himself to cut the next two he walked along the wall in the direction of the window and then stepped onto the brickwork on top of the window when the brickwork that was sitting on the lintel toppled and fell. The plaintiff also fell, landing on the concrete floor of a balcony area located below on the ground level.

34. He was taken by ambulance to Liverpool Hospital where he was admitted under the care of Dr Y Kai Lee, Orthopaedic Surgeon. Surgery in the form of an open reduction of a compound fracture of the left olecranon with internal fixation was performed that day by Dr Szomor with the assistance of Dr Kai Lee. The plaintiff was discharged from hospital on 17 September 2002 to be followed up by Dr Kai Lee.

35. In addition to the left elbow fracture, the plaintiff suffered a fracture of the left side of the pelvis which did not require surgery. He also sustained bilateral supraspinatus tendon tears in the left shoulder for which he underwent arthroscopic surgery performed by Dr Virul-Hapan on 9 July 2003 on the referral of Dr Kai Lee. At the same time the left elbow wires were removed.

36. The plaintiff has also complained that as a result of the fall he developed pain in the neck and back as well as numbness in the left hand, left leg and left foot. Further, the plaintiff has complained of increased tinnitus of the left ear and hearing loss. The plaintiff’s injuries and disabilities have had a psychological effect on him and he has received some treatment for depression.

37. He gave evidence of continuing pain and restriction in the left elbow and shoulder and of continuing pain in the left hip area. Restrictions in movement and activities were outlined by the plaintiff.

38. There is no issue that the plaintiff has permanent impairment which is not less than 15% withing the meaning of the workers compensation legislation. No damages are payable by an employer in respect of an injury which has resulted in a whole body impairment of less than 15%.

39. When the plaintiff was first discharged from hospital he had a back slab on his left arm and this was removed by Dr Kai Lee on 8 October 2002. Dr Kai Lee considered that the plaintiff should start weight bearing and referred the plaintiff for physiotherapy (see Dr Kai Lee’s report of 8/10/02 being part of Ex 9). The plaintiff was being looked after by his wife and to some extent by his daughter who lived at home.

40. The plaintiff and his wife were in the process of paying off the house in which they lived. It was the evidence of the plaintiff and of his wife that it was their intention, prior to the accident, to look for a bigger house in a better area but the accident prevented that plan from proceeding. The plaintiff’s wife was, at the time of the accident and still is, working split shifts as a cleaner at a large school. The plaintiff has not worked since the accident.

41. As against A.D. Clark & Co the plaintiff claims damages for:

(a) non-economic loss pursuant to Section 16 of the CL Act,
(b) economic loss both past and future,
(c) past out-of-pocket expenses,
(d) future medical expenses,
(e) domestic care both past and future, and
(f) loss of superannuation both past and future
The plaintiff also seeks a Fox v Wood sum.

42. In relation to the plaintiff’s claim for damages against Drina Carpentry it was announced to the Court on the second day of hearing that for the purposes of Section 151G of the WC Act, the plaintiff’s damages for past and future loss of earnings, including loss of superannuation and any amount for Fox v Wood, is the sum of $240,000.00.

43. Section 151G provides that in respect of any claim for damages to which the WC Act applies,

“(1)The only damages that may be awarded are:
(a) damages for past economic loss due to loss of earnings, and
(b) damages for future economic loss due to the deprivation or impairment of earning capacity.”

44. The agreement as to the sum for damages for the purposes of Section 151G reached by the plaintiff and Drina Carpentry did not extend to an agreement that the sum should necessarily result in a judgment for that sum having regard to Section 151N which generally makes provision for the reduction of damages for deprivation or impairment of earning capacity where there is contributory negligence. As previously mentioned there was no issue as between the plaintiff and Drina Carpentry that the WC Act did apply to the plaintiff’s claim for damages against Drina Carpentry.

45. It was announced to the Court by A.D. Clark & Co that it was prepared to accept, subject to liability being established, that the sum of $240,000 was also an appropriate figure for the plaintiff’s economic loss claim against A.D. Clark & Co under the CL Act. The plaintiff, however, was not prepared to concede that $240,000 was an adequate figure for the purposes of the claim being made by the plaintiff against A.D. Clark & Co to be assessed under the CL Act.

46. The plaintiff referred for instance to Section 151I 1A which caps a plaintiff’s retirement age at 65 where no such limitation is contained in the CL Act. Notwithstanding, the CL Act by Section 13 does require the Court to have regard to likely future circumstances but for the injury.

47. In any event A.D. Clark & Co foreshadowed a submission that the plaintiff was, by virtue of the agreement between the plaintiff and Drina Carpentry, estopped from bringing evidence in response of the plaintiff’s claim against A.D. Clark & Co for economic loss other than that such loss be the sum $240,000.00.

48. Later in the proceedings the plaintiff sought to adduce evidence in the form of an economic loss report which was objected to upon the basis, inter alia, that the plaintiff was estopped by virtue of his agreement with Drina Carpentry. In a ruling given on the objection on 14 February 2007 the evidence was admitted upon the basis that the plaintiff’s claim against A.D. Clark & Co was not governed by the agreement reached between the plaintiff and Drina Carpentry.

49. The issues which arise for determination are:

(a) whether A.D. Clark & Co owed the plaintiff a duty of care to provide a safe system of work,
(b) if so, whether A.D. Clark & Co was in breach of its duty,
(c) the measure of damages, if any, to which the plaintiff is entitled as against A.D. Clark & Co,
(d) whether any damages payable by A.D. Clark & Co and/or Drina Carpentry are to be reduced by reason of any contributory negligence on the plaintiff’s part,
(e) whether the damages payable by A.D. Clark & Co are to be reduced by virtue of Section 151Z(2) of the WC Act and if so, to what extent,
(f) whether Drina Carpentry is entitled to an indemnity pursuant to Section 151Z(1)(d) in respect of compensation payments made by Drina Carpentry to the plaintiff and, if so, to what extent,
(g) whether Drina Carpentry is entitled to any contribution pursuant to Section 5 of the LR (MR) Act from A.D. Clark & Co,
(h) Whether A.D. Clark & Co is entitled to any contribution pursuant to Section 5 of the LR (MP) Act from A.D. Clark & Co.

LIABILITY

50. The plaintiff’s fall was investigated by the WorkCover Authority and as a result both Milan Vujinovic and David Clark were prosecuted in the Industrial Relations Commission for breaches of the Occupational Health & Safety Act, 2000. Both pleaded guilty. Statements made by Mr Vujinovic to a WorkCover Inspector in the form of records of interview were tendered by A.D. Clark & Co as evidence in the cross-claims only. A transcript of the evidence of Mr Vujinovic given in the Industrial Relations Commission on 8 July 2005 was also tendered by A.D. Clark & Co as evidence in the cross-claim only. Mr Vujinovic did not give evidence in the present proceedings.

51. In his statement dated 26/5/03 to the WorkCover Authority Mr Vujinovic accepted that he employed the plaintiff to work at the Picnic Point site.

52. A transcript of the evidence given by David Clark and also by Anthony Clark in the Industrial Relations Commission on 8 July 2005 was tendered by the plaintiff and admitted into evidence at large. Both David Clark and Anthony Clark gave evidence in the present proceedings.

53. Anthony Clark, in his evidence in the present proceedings, said that a conversation took place between he and Milan Vujinovic at the very start of Mr Vukinovic’s week on the site. According to Anthony Clark’s evidence that conversation initially took place in or near the site office. He told Mr Vujinovic that the bricks over the lintel of the window had not been tied in and that Mr Vujinovic would need to be careful there and not walk on it. He also told Mr Vujinovic that he and David had discussed this area and that Mr Vujinovic and David Clark would need to discuss how the work in the area was to be done.

54. They then moved to townhouse No. 1 and to the area of the lintel. All of the townhouses were of identical design. A gable roof for an ensuite bathroom was to be constructed above the lintel. It was proposed that the brickwork sitting on the lintel would be tied in to ceiling joists which would sit on timber plates to be placed on top of the brickwork. That is, the brickwork would be tied in and stabilised as construction above it proceeded. It was the job of the roofing carpenters to do this.

55. David Clark was present in townhouse No. 1 when discussions continued and were led, according to the evidence of Anthony, by Anthony as he had many years of carpentry experience as compared to David.

56. Anthony Clark had been a builder since 1974 and completed an apprenticeship in carpentry with his father. Both he and his two sons worked on the Picnic Point site. Whilst Anthony was there on most days for a period, David was there on a full-time basis and was supervising the job and was site foreman. David, a carpenter, had completed his apprenticeship with Anthony. David had also completed a Clerk of Works course.

57. Anthony Clark could not recall any further conversation with Milan Vujinovic concerning the area of the lintel.

58. David Clark also gave evidence about the conversation in townhouse No. 1 with his father and Milan Vujinovic. David Clark said in evidence that it was he who predominantly spoke about the safety aspects of work in the area of the lintel saying that it was unstable until the brickwork was tied in and that a ladder could not be placed against it. His evidence was that he was satisfied with what had been discussed but did agree that Anthony Clark had said that he and Milan would need to have further discussions about the work that had to be done in this area.

59. There was no further discussion according to David until after the plaintiff’s fall. This is despite an incident referred to by David Clark in his evidence when about one week after the discussion in townhouse 1, the brickwork above an ensuite window lintel was knocked over when carpenters were lifting materials up to the roof area of that townhouse.

60. According to the plaintiff there were three carpenters working on the site at Picnic Point including himself, Milan Vujinovic and Anthony. David Clark thought it was more like four or even five. Both Anthony and David said they had seen carpenters wearing harnesses whilst those carpenters were working on the perimeter of the building. David Clark did not, apart from pointing out to Milan Vujinovic that the brickwork over the lintel was potentially unstable, give safety directions to the carpenters. A.D. Clark & Co had engaged Drina Carpentry on a number of other jobs and had found their work satisfactory.

61. Whilst there are allegations in the cross-claims of non-compliance with the Occupational Health & Safety Act, 2000 and the Regulations made thereunder on the part of the defendants, all parties were in agreement that a breach did not give rise to a cause of action in civil proceedings and were referred to as an indication of the measure of the duty owed if indeed a duty of care was owed in the circumstances.

62. Clearly Drina Carpentry owed a duty of care to the plaintiff. I am satisfied that the plaintiff was an employee and was to be paid at the rate of $180.00 per day gross and was to work 6 days per week. There is, however, due to the vagaries of the building industry, some question as to the permanency of the employment but I will return to this aspect of the matter later.

63. Drina Carpentry, but not A.D. Clark & Co, has made the concession that the plaintiff was an employee. Mr Vujinovic did not give evidence. The plaintiff was cross-examined by Counsel for A.D. Clark & Co regarding invoices in the plaintiff’s invoice book (Ex D) that the plaintiff issued to Drina Carpentry somewhat inconsistent with the plaintiff being an employee.

64. The plaintiff explained that they were written by him at the request of Mr Vujinovic shortly after the plaintiff came out of hospital and dated them as instructed. The plaintiff said he did so because he wanted to be paid. Milan Vujinovic had 2 cheques with him and the plaintiff wrote out 3 invoices. Mr Vujinovic had told the plaintiff that one cheque represented money received by Drina Carpentry from the insurance company by way of workers compensation. The other cheque was for monies from Drina Carpentry. The evidence does not explain how the money was made up. In any event the plaintiff wrote out the invoices.

65. Consistent with the plaintiff having issued invoices, the plaintiff’s tax returns for the financial year ending 30 June, 2003 do not show the plaintiff as having received monies from Drina Carpentry as wages. However, it is also consistent with the plaintiff’s evidence that he was still waiting on Mrs Vujinovic to organise the employment paperwork when the fall occurred and that the agreement he had with Drina Carpentry went by the way when the fall occurred. The plaintiff also said that he had cancelled his GST registration but not his ABN once starting with Drina Carpentry.

66. It was put to the plaintiff that the compensation claim form only went in to the insurance company after the invoices were in fact written and this was against the plaintiff’s evidence that the insurer had paid compensation to Drina Carpentry before the invoices were issued. The plaintiff responded by saying that that is what he had been told by Mr Vujinovic.

67. In the event that the conclusion I have reached that the plaintiff is an employee is not correct, I do not think that it makes a material difference. At the very least, the plaintiff was a contract worker akin to an employee and would be a deemed worker and entitled to workers compensation pursuant to the workers compensation legislation.

68. The view I take is that the provision of Part 5 of the WC Act apply equally to common law proceedings against an “employer” commenced by a deemed worker as they do to employees and that references to “employer” in Part 5 are expansive and includes a principal who engaged a worker who qualifies as a deemed worker (see Section 150C of the WC Act which also extends the meaning of “employer” to include anything that is within the scope of a corresponding term in the existing workers compensation scheme of another state).

69. Drina Carpentry owed a non-delegable duty of care to the plaintiff and there has been an admission of a breach of duty of care by Drina Carpentry.

70. There is no dispute that at the very least, A.D. Clark & Co as occupier of the premises owed a duty of care to the plaintiff, that is, a duty to take reasonable care for those entering upon the land by virtue of the fact that an occupier has a measure of control over the land. However, the extent of that duty depends upon the nature of the relationship that exists between the parties.

71. In Thompson v Woolworths (Q’land) Pty Limited [2005] HCA 19 at [26] the Court stated that:

“The purpose for which, and the circumstances in which, the appellant was on the respondent’s land, constituted a significant aspect of the relationship between them.”

72. Earlier at [24] the Court had stated that:

“The status of the respondent as occupier of the land on which the appellant was injured was one aspect of the relationship that gave rise to a duty of care. It gave the respondent a measure of control that is regarded by the law as identifying the existence and nature of a duty of care. There was however more to the relationship than that, and, as was agreed on both sides, the problem was not one that concerned only the physical condition of the premises.”

73. In the present case, A.D. Clark was the developer, the builder and the project manager of the site construction. It was A.D. Clark that organised the various trades, for instance, the bricklayers and carpenters. It was responsible for the design and construction of the project. It was a large scale project as has already been outlined. This was not a case of alterations being done to a single dwelling. The evidence disclosed that they had been involved in earlier projects where they had engaged the services of Drina Carpentry.

74. Whilst it is true that Drina Carpentry had a degree of control over the way it conducted its work and the order in which the work was done provided that the project progressed, it was not responsible for what was done by any other trade. For instance, Drina Carpentry had no involvement in the placement of the bricks over the lintel for the ensuite bathroom windows. It was A.D. Clark & Co that co-ordinated the trades and as such controlled the overall system of work being performed on the site (see Stevens v Brodribb Sawmilling Company Pty Limited (1986) 160 CLR 16).

75. In Kolodziejczyk v Grandview Pty Ltd [2002] NSWCA 267 there was no element of different trades having to rely on the care and skill of persons engaged by the defendants whereas in the present case the plaintiff was relying on construction work performed and organised by others. The plaintiff was in partnership with another doing cladding work on a contract basis for the defendant company at various sites not being building sites controlled by the defendant.

76. In Rockdale Beef Pty Limited v Carey (2003) NSWCA 132 Ipp J, after reviewing Stevens and other cases, stated at [92]:

“In my opinion, in the particular circumstances of this case, to the extent that the configuration of the work site caused there to be a safety risk in the work Mr Carey was directed to carry out, Rockdale came under a duty to use reasonable care to avoid or minimise that risk. That is to say, Rockdale was required to exercise reasonable care to avoid or minimise the risk of injury caused by the configuration of the work site. This involved prescribing a safe system of work.”

77. It was not sufficient for Anthony or David Clark simply to point out to Milan Vujinovic that there was a problem in the area as the duty owed by A.D. Clark & Co extended not only to Milan Vujinovic but to workers on site who in the ordinary course of events may have been expected to be exposed to the risk or potential danger presented by the unsecured brickwork over the ensuite window lintels.

78. In my view it was not a sufficient discharge of its duty for A.D. Clark & Co to rely alone on Mr Vujinovic bringing it to the attention of his workers. Also, a duty is owed to persons who are inadvertent or who may not take all care for their own safety.

79. The fact that the lintel arrangement presented a risk was well known to A.D. Clark & Co even at a time when Drina Carpentry first came onto the site. The risk was highlighted when about a week after the conversation between Mr Vujinovic and the Clarks there was the collapse of the brickwork over the lintel in another location on the site.

80. There is no evidence that there was any further conversation about the problem between David Clark or Anthony Clark with Milan Vujinovic. To my mind, to have constructed the brickwork in that fashion and simply to have left it like it was until later tied in by the carpenters during construction of the gable roof above was not a sufficient response to the risk. To refer to the often quoted passage from the judgment of Mason J in Wyong Shire Council v Shirt ((1980) 146 CLR 40 at pp 47-48):

“The perception of the reasonable man’s response (to the risk of injury) calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of seeking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when the matters are balanced and the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant’s position.”

81. Mr Edward Brincat, a Civil Engineer and licensed builder, gave evidence as an expert. Two reports of Mr Brincat, namely the reports of 6 September 2005 and 15 September 2006, were tendered by the plaintiff and, subject to some deletions following objection, became Ex J. In summary, Mr Brincat was of the view that scaffolding would have provided a solid platform from which the plaintiff could have worked. Scaffolding would also, according to Mr Brincat, have facilitated the carrying out of other work at the height and around the perimeter of the building such as the provision of eaves and guttering.

82. Mr Brincat ascertained that the initial proposal of A.D. Clark & Co to place wooden lengths of timber on top of the bricks over the lintel which would support rafters was altered. Instead the brickwork over the lintel was removed and timber panelling used.

83. This altered design did not have the problem associated with having bricks on top of the lintels which were not tied in.

84. Also, Mr Brincat spoke of the provision and usefulness of scaffolding by A.D. Clark & Co subsequent to the plaintiff’s fall.

85. It was put to Mr Brincat in cross-examination by Counsel for A.D. Clark & Co that if the plaintiff had been wearing a harness that would have prevented the fall. Mr Brincat concluded that harnesses were sometime worn by roofing carpenters but it was not the norm and it restricts work and still presents the potential for injury as a harness does not prevent a fall but arrests the fall with the possibility of the wearer hitting a wall or other structure.

86. Annexed to Mr Brincat’s report of 6 September 2005 is a copy of a report dated 22/9/02 by WorkCover Inspector, Ian Tyler in which the inspector says that on his inspection there was no evidence of any anchor point for safety lines on the roof or the structure.

87. The plaintiff’s evidence was that some jobs he worked on in the past had scaffolding. He said that a dangerous job was to cut rafters from the outside and that was where scaffolding came in handy. He also said that he was not aware that Mr Vujinovic had any harnesses available on the site and he did not see any in the work vehicle used by Mr Vujinovic.

88. There is no evidence that Mr Vujinovic was wearing a harness when he was tailing rafters and asked the plain tiff to complete the job. There is also no evidence that Mr Vujinovic had given the plaintiff any direction about wearing a harness.

89. Even if the plaintiff had been wearing a harness and stepped on this brickwork it would still have collapsed and the plaintiff potentially injured.

90. In my view, to have left the brickwork in that unsafe state was a breach of the duty of care owed by A.D. Clark & Co to the plaintiff as a worker on the site likely to be working in the vicinity of the lintel.

91. It was put to Anthony Clark and David Clark that a sign could have been placed on this section, or a warning tape or ribbon. Neither Anthony Clark nor David Clark said that this would not have been possible.

92. Warnings in the form referred to may have been effective in alerting the plaintiff to the danger. Mr Brincat said that it was common practice for roofing carpenters to walk on brickwork and in his view, a roofing carpenter would have assumed that the apparently completed brickwork was stable and safe to walk on.

93. The plaintiff was, to some degree, at risk of falling when he was working at a height perched precariously as he was on top of a narrow brick wall. That is not to say that the plaintiff expected the brickwork to collapse. Had the plaintiff turned his mind to an alternative method of performing the task knowing as he did that there was no scaffolding and believing that there were no harnesses available, he may have explored the possibility of using a long ladder with a fellow worker steadying the ladder from below. No consideration of this alternative, which Mr Brincat conceded would have been possible, appears to have been given by the plaintiff. That is not to say that such a ladder or assistance was available or not.

94. Even if harnesses were available on the site, I accept the plaintiff’s evidence that he was not aware that they were available. I do not consider, however, that it is an answer by A.D. Clark & Co to say that the plaintiff should have worn a harness with that harness being supplied to him by his employer because the provision of a harness would not have been an appropriate response to the risk of injury created by the brickwork.

95. I consider that the appropriate response on the part of A.D. Clark & Co would have been to provide scaffolding to the site in circumstances where it was proceeding with the work with the brickwork in the state that it was in.

96. This was a large building project. The plaintiff said he had worked from scaffolding on large sites before. The cost of scaffolding provided after the plaintiff’s fall was $60,000 to $70,000 , which in all probability, was a very small amount compared with the likely overall cost of the construction project. It would be available for use for various trades. To expect one trade, for instance the roofing carpenters, to provide scaffolding at a cost of up to $70,000 on an $85,000 contract would plainly be unreasonable.

97. In Mambare Pty Ltd t/as Valley Homes v Rebecca Irene Bell in her capacity as Administratrix of the Estate of the late Simon James Bell & Anor [20006] NSWCA 3122 at [27], Handley JA said:

“On large sites the head contractor would provide scaffolding, lifts, and cranes as part of its organisation of the project and the sub-trades could not be expected or allowed to make their own arrangements. However, this project only involved single storey buildings on a level site.”
The present case is akin to the situation that was contrasted by Handley JA in Mambare .

98. I do not consider that a term of the verbal contract between Drina Carpentry and A.D. Clark & Co that Drina Carpentry would provide labour, materials and equipment would extend to the provision of scaffolding by Drina Carpentry.

99. Accordingly, it is my view that A.D. Clark & Co owed the plaintiff a duty to implement a system of work so that work be carried out on the site could be performed with relative safety. A.D. Clark & Co was in breach of the duty of care for the reasons outlined.

APPORTIONMENT

100. I now turn to the question of apportionment as between Drina Carpentry on the one hand and A.D. Clark & Co on the other.

101. It is clear that Drina Carpentry failed to have proper regard for the plaintiff’s safety. I accept that the unsafe state of the brickwork was made known to Mr Vujinovic by Anthony and David Clark and that Mr Vujinovic did not bring this to the attention of the plaintiff.

102. I believe it is likely that Drina Carpentry did have harnesses on site but that this was not made known to the plaintiff nor was there any system implemented by Mr Vujinovic requiring the use of harnesses. As I have already stated, however, I do not consider that the use of a harness would have been a completely appropriate response to the risk known to Mr Vujinovic presented by the bricks particularly when Mr Vujinovic sent the plaintiff to work in that area. There is nothing from Mr Vujinovic to suggest that he himself was wearing a harness when he sent the plaintiff up to the area. There is also nothing to suggest that Drina Carpentry gave any consideration to how else the task might be performed.

103. At the very least Drina Carpentry owed the plaintiff a duty to warn him of the known risk and told the plaintiff not to stand on the brickwork over the lintel.

104. Drina Carpentry did not construct the brickwork and could not be said to have created the danger. However, it was part of the job of Drina Carpentry to complete the gable construction over the brickwork. Even though Anthony Clark told Mr Vujinovic that David Clark would speak to him further about the work to be performed in that area it appears that there were no further discussions prior to the fall. Nonetheless, Drina Carpentry, having some responsibility in regard to the unsafe area, does not appear to have taken any steps to expedite the work or to properly address the safety issue arising from this area.

105. There is nothing from Mr Vujinovic to suggest that he attempted to resolve with A.D. Clark & Co the safety issue arising in the area of the lintel.

106. As an employer, Drina Carpentry owed the plaintiff a duty of care to provide the plaintiff with a safe place to work and a safe system of work.

107. The injuries suffered by the plaintiff were contributed to by both Drina Carpentry and A.D. Clark & Co and I apportion liability 40% to Drina Carpentry and 60% to A.D. Clark & Co.

CONTRIBUTORY NEGLIGENCE

108. I refer to my earlier comments about the risk of the plaintiff working at a significant height perched precariously on a wall without considering how he might best address that risk. However, as already stated, I accept that the plaintiff was not aware that there were harnesses on site, albeit with their limitations. More particularly, his employer directed him to work in this area which is exactly what the plaintiff did. I do not think that the risk associated with working where he was without scaffolding gives rise to negligence on the plaintiff’s own part. The position might well be different for an independent contractor working in his own right.

109. Accordingly, I find that there was no contributory negligence on the plaintiff’s part.

110. Damages that are payable to the plaintiff are subject to the operation of Section 151Z(2) of the WC Act which provides:

“If, in respect of an injury to a worker for which compensation is payable under this Act:
(a) the worker takes or is entitled to take proceedings independently of this Act to recover damages from a person other than the worker’s employer, and
(b) the worker also takes or is entitled to take proceedings independently of this Act to recover damages from that employer, the following provisions have effect:
(c) the damages that may be recovered from the person by the worker in proceedings referred to in paragraph (a) are to be reduced by the amount by which the contribution which the person would (but for this Part) be entitled to recover from the employer as a joint tortfeasor or otherwise exceeds the amount of the contribution recoverable,
(d) ….
(e) … ”

111. During the course of the proceedings I raised with the parties the question of the steps to be followed to give effect to the provisions of sub-section (2) as outlined above. I provided the parties with an outline of the suggested steps to be followed. There was general agreement that the following steps were appropriate to determine the damages payable to the plaintiff:

(1) Assess total damages to which a worker would be entitled under the Civil Liability Act 2002 - s 151Z(2)(b) Workers Compensation Act (the Act);
(2) Assess total damages to which the worker would be entitled under Division 3 of Part 5 of the Act;
(3) Apportion liability for the accident as between the stranger and the employer (expressed as a percentage);
(4) Apply the percentage for the employer’s liability (step 3) to the total damages assessed under the Civil Liability Act (step 1) to arrive at the damages to which the stranger would be entitled to recover from the employer but for Part 5 of the Act;
(5) Apply the percentage for the employer’s liability (step 3) to the total damages assessed under Part 5 of the Act (step 2) to arrive at the contribution which the stranger is entitled to recover from the employer;
(6) Calculate the amount by which the damages payable to the plaintiff by the stranger is to be reduced by deducting the employer’s contribution to the employer to the damages assessed under Part 5 of the Act (step 5) to arrive at “the amount by which the contribution which the stranger would but for Part 5 of the Act be entitled to recover from the employer … exceeds the amount of the contribution recoverable” as referred to in section 151Z(2)(c);
(7) Deduct this sum (step 6) from the damages assessed pursuant to the Civil Liability Act (step 1) to arrive at the figure for damages payable to the plaintiff.

112. In accordance with step (1), the damages that the plaintiff would be entitled to under the CL Act are to be assessed.

113. Damages for non-economic loss are payable in accordance with section 16 of the CL Act and to be assessed in comparison to a most extreme case.

114. The plaintiff suffered significant injuries as a result of his fall and I have already made general reference to them.

115. Dr Kai Lee was the plaintiff’s treating specialist following the fall. According to the report dated 19 December 2002 of Dr Kai Lee, the plaintiff was able to walk with the aid of one stick only. After the plaintiff became ambulatory which was probably during October 2002 he required two crutches. He was limited because of the troublesome left shoulder and left arm which in all likelihood made the use of crutches difficult.

116. Grant Pleffer, Physiotherapist, reported on 19 May 2003 that the plaintiff now sometimes walks from Warwick Farm to Liverpool and was able to walk up a flight of stairs without a stick.

117. By the end of January 2004, Dr Kai Lee was reporting that the plaintiff was able to walk about 1 kilometre.

118. On 10 February 2004, Dr Kai Lee stated that the plaintiff was fit to perform work that did not involve heavy lifting, bending with the back or working with the arms elevated.

119. When Dr Kai Lee reported on 23 September 2005 he stated that it had been over one year since he had last seen the plaintiff. The doctor considered that the plaintiff had evidence of ulna nerve irritation at the back of the left elbow.

120. Dr Kai Lee expressed the view in his report of 21 June 2006 that the plaintiff had a whole person impairment of 27%.

121. A medico-legal examination of the plaintiff by Dr Max Ellis took place on 24 June 2003. Dr Ellis considered that the plaintiff suffered injury to the neck, back and left shoulder as a result of the fall, as well as fractures of the left elbow and pelvis.

122. Both ENT specialists, namely Dr Katzen in his report of 1 May 2003, and, Dr Stylis in his report of 9 November 2004, speak of the plaintiff having noise induced hearing loss as a result of his exposure to industrial noise. Dr Stylis considered that there was an additional loss of hearing in the left ear of a conductive hearing loss kind and that a contribution following a head injury could not be excluded. I do not conclude on the basis of that evidence that the plaintiff suffered hearing loss as a result of the fall.

123. Dr Habib saw the plaintiff on 1 September 2005 and produced a medico-legal report on 2 September 2005. He considered that the plaintiff had a whole person impairment of 21%. He considered that the plaintiff had stabilised and was “permanently unfit for his pre-injury employment or similar physically demanding duties”. Further, Dr Habib considered that the plaintiff was restricted in terms of activities “involving heavy lifting, bending, reaching over or …(working) above shoulder height”.

124. The plaintiff continues to be seen by the general practitioner, Dr Strinich. In August 2005, Dr Strinich referred the plaintiff to Dr Keemanovic, Consultant Psychiatrist. A report dated 4 October 2006 from this doctor outlines that he had seen the plaintiff on eight occasions up to the date of the report. It was the doctor’s opinion that as a result of continuing physical symptoms or reduced functional capacity that the plaintiff developed mental symptoms including depression which the doctor diagnosed as a Major Depressive Illness. Treatment included counselling and anti-depressant medication without improvement in the plaintiff’s mental state. The doctor considered that it was likely that the plaintiff’s emotional state would improve if his physical symptoms improved.

125. Medical reports from Dr T Silva were tendered by the second defendant. Dr Silva, in his report of 16 July 2004, was of the view that the plaintiff was unfit for labouring work, heavy lifting or overhead reaching. He considered that the plaintiff was fit for sedentary work which could include the work of a shop assistant. In a supplementary report of the same date Dr Silva stated the plaintiff’s whole person impairment to be 21%.

126. Dr Silva reviewed the plaintiff in November 2005 and stated that there had been significant improvement in movement of the left elbow and left shoulder.

127. There is no real issue that the plaintiff does and will continue to suffer symptoms and restriction as a result of his injuries. The references in the medical reports to whole person impairment relate to a measure of impairment for the purposes of compensation entitlements under the workers compensation legislation and do not really correlate with the assessment process pursuant to section 16 of the CL Act.

128. The assessment I make for the plaintiff’s non-economic loss is 30% of a most extreme case which gives rise to an entitlement to damages of $98,210.00.

129. The plaintiff would also have an entitlement to economic loss. The plaintiff has not returned to any form of employment since his fall. The total period for past economic loss is a period from 7 September 2002 to date, namely a period of approximately 240 weeks.

130. The plaintiff has submitted that the average net weekly wage loss in respect of the past is $750.00 per week. This is based on the plaintiff’s evidence that as a permanent employee of Drina Carpentry he would have been earning, but for the injury, $180 gross per day, 6 days a week. That is, the sum of $1,080 gross per week.

131. An examination of the plaintiff’s taxation returns and notices of assessment shows a different picture for the past. For example, the average earnings after tax is approximately $340 per week.

132. The economic loss report of Fiona Bateman tendered by the plaintiff annexes tax returns but does not analyse the earnings in those returns in terms of the plaintiff’s likely earnings post accident.

133. According to the plaintiff’s evidence, he was fully employed for many years prior to the accident doing carpentry work and in the main was paid for working 6 days per week except perhaps for when it was raining. The plaintiff gave evidence that he was paid up to $140 per day. However, the tax returns suggest the likelihood that there were periods of unemployment such as might occur when there were gaps between jobs or between one project finishing and the next one starting.

134. he plaintiff would appear to have placed a good deal of confidence in his employment prospects with Drina Carpentry. However, the plaintiff had only just started working for Drina Carpentry and already there did not appear to have been any hurry on the part of Drina Carpentry to put documentation in place for the plaintiff to be “registered” as an employee. If the plaintiff’s evidence concerning the invoice payments is accepted, which I do, then the plaintiff had not received any payment for work performed up to the fall until after the fall even though there was a proposal to pay him money directly into his bank account.

135. Whilst I do accept that as at the date of the accident that he was employed, I do not consider that the plaintiff’s employment was totally secure having regard to the matters I have just referred to and having regard to the nature of earning a living in the building industry as evidenced by his earnings in the past. The plaintiff has suggested a figure of $700 as appropriate having regard to s.16 of the CL Act.

136. I consider that it is appropriate that I should strike a balance between these factors and arrive at a figure for past economic loss on an average weekly basis for the past. The economic loss report refers to the net average weekly earnings of carpentry labourers as being $462 in 2002 and rising to $583 in 2005. These figures, however, do not factor in the vagaries of employment in the building industry such as jobs starting and stopping and the like.

137. The figure I adopt as a fair average net weekly figure for net wage loss in the past is $530.00.

138. Although the plaintiff has only made casual enquiries in his community about the availability of some suitable alternative work I do not consider that the plaintiff would have any significant prospects of finding suitable employment having regard to his skill levels, training, poor English and age. At best he might be regarded as an odd lot and I find that for practical purposes that the plaintiff, whilst maintaining some physical capacity, has suffered a complete loss of economic capacity as a result of his injuries.

139. Accordingly, the plaintiff is assessed as having a past loss of wages of $530.00 per week for 240 weeks which totals the sum of $127,200.

140. The plaintiff is now 59 years of age. He gave evidence that he did not plan to retire from the workforce at age 65. He was fit and well. He did give evidence that subsequent to being off work from the fall he developed diabetes. There is, however, no evidence that this condition limits his physical capacity. The plaintiff said that he and his wife were paying off their house with the plan to upgrade to a bigger house in a better area and this would have been a reason for the plaintiff to have continued with work after age 65. He said he would have continued working until age 70. The plaintiff’s wife, Mara Boric, also gave evidence of their intention to upgrade their housing.

141. Section 13(1) of the CL Act requires the Court to have regard to the claimant’s most likely future circumstances. I consider that the likelihood is that the plaintiff would have continued working beyond age 65. The prosects, however, are that the plaintiff’s physical capacity would have tapered with time and opportunities for employment diminish. Having regard to these matters I would think it unlikely that the plaintiff would have continued working to age 70 but would have continued working to around age 68. This is a value assessment based upon a consideration of those matters I have just referred to and in total I consider the plaintiff, but for the injury, to have a remaining working life of 8 years.

142. Whilst the plaintiff may have had the prospect of earning in excess of $530 net per week into the future, there is a likelihood that the plaintiff’s capacity to earn doing physical work would reduce as time went on and the stability of the plaintiff’s employment with Drina Carpentry was by no means certain going into the future. In my view it is appropriate to also adopt the figure of $530 net per week for the future and I do so.

143. The application of the 5% tables and a reduction of 15% for vicissitudes results in a figure for future economic loss of $155,692 (multiplier of 345.6 for $530 per week for 8 years on the 5% tables).

144. The approach adopted by the plaintiff in respect of the claim for loss of superannuation was simply to apply 9% to the figure for past loss of wages in respect of past loss of superannuation and 9% to the net figure for future wage loss in respect of future loss of superannuation. No opposition was raised to that approach and I adopt it. Accordingly, the figure for past loss of superannuation is $11,448. The figure for future loss of superannuation is $14,012.

145. Past out-of-pocket expenses have been agreed to total the sum of $43,544.94 which I round out to $43,545.

146. I consider that it is appropriate to approach the assessment of future out-of-pocket expenses upon the basis of a buffer. The plaintiff has submitted that there be an allowance for bi-monthly visits to the general practitioner, annual visits to a specialist, treatment over a period for a psychiatrist and medication over the years. The figure that the plaintiff has put forward is a little under $20,000.

147. I am mindful that the psychiatrist said that counselling and anti-depressant medication were not effective in elevating the plaintiff’s mood and was dependent on his physical symptoms. Ongoing treatment in the form of analgesia for the plaintiff’s physical symptoms together with some form of exercise programme would appear to be appropriate, as would periodic medical review. The plaintiff’s condition is relatively stable. I propose to allow the sum of $10,000 for future out-of-pocket expenses.

148. The Fox v Wood component of damages is agreed at $2,041.

149. I turn now to the plaintiff’s claim for past gratuitous attendant care services within the meaning of s.15 of the CL Act. No damages may be awarded under the section unless the services were provided for at least 6 hours per day and for at least 6 months. The plaintiff makes a claim for 21 hours of care per week at $20 per hour to date.

150. According to the report of Dr Kai Lee of 8 September 2002, it was at that time that he expected the plaintiff to start weight bearing. One can imagine that the plaintiff had little mobility before that time and was severely restricted for a period thereafter.

151. The plaintiff gave evidence that he was initially on 2 crutches until about 2 months following his discharge from hospital. He was then on one crutch for about six months. The crutch was followed by a walking stick until perhaps early 2005. Since then, the plaintiff has used an umbrella from time to time as an aid.

152. Mrs Mara Boric gave evidence that she works a split shift leaving home at 5 a.m. to start work at 6.30 a.m.. There is then a break in the middle of the day when she returns home to leave against at about 1.30 p.m. She arrives home in the evening at about 7 p.m.

153. She said that before the accident the plaintiff did the lawns and everything in the garden as well as repairs. He generally did not cook but would do the dishes. She put the washing through the machine and he would hang it out. The plaintiff did the shopping and vacuuming. The picture presented by Mrs Boris was one very much of a give and take relationship in terms of household chores.

154. The level of care provided by Mrs Boric during an initial period of 2 months following the plaintiff’s release from hospital was quite intense as she detailed in her evidence and I accept that in this period the additional responsibilities assumed by Mrs Boric did average out to about 20 hours. For this period the plaintiff would be entitled to $3,200 being 20 hours per week at $20 per hour for 8 weeks.

155. Thereafter, the plaintiff’s need for care would quite rapidly have improved particularly as he became more and more mobile. Dr Kai Lee had noted that by December 2002 the plaintiff walked with one stick. Whether this is a crutch or a walking stick is not clear. By May 2003, the physiotherapist was commenting that the plaintiff sometimes walks from Warwick Farm to Liverpool.

156. On the evidence, it is my view that for a period of another 6 months following the initial period of 2 months after the plaintiff left hospital he required assistance on an average of two hours per day, 7 days per week. This would quantify out to 14 hours per week which at $20 per hour would result in a figure of $7,280 (14 x $20 x 26 weeks).

157. From that time until the expiration of a period of twelve months from the time that the plaintiff was released from hospital, the plaintiff’s need for care as a result of the accident was reasonably 1 hour per day 7 days per week. This period is for a period of approximately 4 months or 17 weeks. This quantifies out at 7 hours per week which at $20 per hour would result in a figure of $2,380.

158. Realistically, the plaintiff’s need for care reduced after this to receiving help with some tasks like helping to put on his socks which he has difficulty with because of his back. The plaintiff now mows the lawn with the assistance of his wife. I do not consider that such assistance would be greater than 2 hours per week, and, falling below the threshold prescribed by section 15, is not a matter in respect of which damages are to be awarded.

159. The total of the figures for the various periods for past domestic care is the sum of $12,860.

160. Mrs Boric struck me as being fiercely loyal to her husband and was unstinting in caring for him. The concept of the plaintiff paying a commercial agency to assist with domestic chores would, I believe, be completely alien to both the plaintiff and his wife. In any event, I consider that the plaintiff’s present need for domestic assistance is minimal.

161. The plaintiff does claim for paid future domestic care. However, I am not satisfied on the evidence that the plaintiff would avail himself of the opportunity to engage outside paid services even if funds were made available. In the circumstances, I find that the plaintiff has not established an entitlement to an assessment of damages for paid domestic services (see Matchan v. Lyons [2003] NSWCA 384).

162. The total damages assessed in accordance with the CL Act are the sum of $475,008.

163. Returning now to the steps involved in the section 151Z(2) exercise outlined earlier, step 2 is the total damages that the plaintiff would be entitled to under Division 3 of Part 5 of the WC Act and which is $240,000. That sum was the sum agreed to by the plaintiff and Drina Carpentry for the purposes of section 151G of the WC Act. In view of my findings, that sum becomes the amount of damages assessed in accordance with Part 5 of the WC Act.

164. Step 3 is the apportionment of liability as between Drina Carpentry and A.D. Clarke & Co found to be 40:60.

165. Step 4 requires the application of the percentage for the liability of Drina Carpentry being 40% of the total damages assessed under the CL Act, being $475,008, to arrive at the damages which would be recoverable by A.D. Clark from Drina Carpentry but for Part 5 of the WC Act, namely the sum of $190,003 (40% of $475,008).

166. Step 5 requires the application of the percentage for the liability of Drina Carpentry being 40% of the total damages assessed under Part 5 of the WC Act, being $240,000, to arrive at the contribution which would be recoverable by A.D. Clark from Drina Carpentry pursuant to the WC Act, namely the sum of $96,000 (40% of $240,000).

167. Step 6 involves deducting the contribution of Drina Carpentry assessed under the CL Act, namely the sum of $190,000, from the contribution of Drina Carpentry assessed under the WC Act, namely the sum of $96,000. This results in an excess of $94,000 ($96,000 - $190,000).

168. Step 7, namely deducting the sum of $94,000 from the damages assessed under the CL Act of $475,008 is the sum that the plaintiff is entitled to receive by way of damages, that is $381,008 ($475,008 - $94,000).

169. As at the date of trial, workers compensation payments paid to the plaintiff by Drina Carpentry totalled $171,007 including the Fox v Wood amount. This is the sum claimed by Drina Carpentry from A.D. Clark pursuant to section 151(1)(d). It would appear to me that this sum is the sum that Drina Carpentry would be entitled to on its cross-claim against A.D. Clark & Co.

170. It also would appear to me that A.D. Clark & Co would be entitled to the sum of $96,000 on its cross-claim against Drina Carpentry.

171. The parties have submitted that the Court enter one judgment figure in the plaintiff’s favour and that that should be the sum which results from step 7, and which is the sum of $381,008. Accordingly, I give judgment for the plaintiff against the defendants in the sum of $381,008.

172. The defendants submitted that they be given the opportunity to make any necessary adjustments as between Drina Carpentry and A.D. Clark & Co having regard to section 151(1)(d) and the findings made for the Court. Accordingly, I grant liberty to the parties to apply both in this regard and in regard to the form of the orders to be made on the cross-claims to give effect to the judgment. I also grant liberty to the parties to make any submissions on the question of costs.

ADDENDUM TO JUDGMENT -

Following further submissions:

(1) Order that the plaintiff’s costs are to be paid by the first defendant on the one part and by the second to fifth defendant’s on the other;

(2) Judgment for the cross-claimant on the first cross-claim against the cross- defendant in the sum of $173266 with each party to bear it’s own costs; and

(3) Judgment for the cross-claimant on the second cross-claim against the cross - defendant in the sum of $96000 with each party to bear it’s own cost’s.

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