Omar Baghdadi by his tutor Sami Kouri v P & M Quality Smallgoods Pty Limited; and Kaybron (No5) Pty Ltd v Vidual Pty Ltd - [2008] NSWSC 406

No judgment structure available for this case.

CITATION: Omar Baghdadi by his tutor Sami Kouri & Ors v P & M Quality Smallgoods Pty Limited; Austec Panel Systems Australia Pty Limited; Vidual Pty Limited; Kaybron (No5); and Kaybron (No5) Pty Ltd v Vidual Pty Ltd; Austec Panel Systems Australia Pty Ltd; P & M Quality Smallgoods Pty Ltd [2008] NSWSC 406

HEARING DATE(S): 24,25,26,27,28 September 2007
2,3,4,5,8,9,10,11,12,15,16,17,26 October 2007
26,27,28,29,30 November 2007
3,4,5,6,10,11,12,13,14 December 2007
31 January 2008
6,7,8,11,12,13,19 February 2008

JUDGMENT DATE :
7 May 2008

JUDGMENT OF: Patten AJ at 1

DECISION: See paragraph 635

LEGISLATION CITED: Civil Liability Act 2002
Civil Procedure Act 2005
Law Reform (Miscellaneous Provisions) Act 1946.
Occupational Health and Safety Regulation 2001
Occupational Health and Safety Act 2000.
Workers Compensation Act 1987

CASES CITED: Atkinson v Gameco (NSW) Pty Ltd [2005] NSWCA 338
Australian Safeway Stores Pty Ltd v Zaluzna (1987) 61 ALJR 180
Blundell v Musgrave (1956-7) 96 CLR 73
Diamond v Simpson [2003] NSWCA 67
Florida Hotels Pty Ltd v Mayo (1965) 113 CLR 588
Fox v Wood 55 ALJR 562
G T Pettersen v Bacha (1995) 21 MVR 71.
Hackshaw v Shaw (1984) 155 CLR 614:
I & J Foods Pty Ltd v Bergzam Pty Ltd (1997) 14 NSWCCR 486
James Hardie & Co Pty Ltd v Roberts & Anor [1999] NSWCA 314
Kurrie v Azouri (1998) 28 MVR 406
Manning v State of NSW [2005] NSWSC 958
Mutton Bros v Howard Haulage Pty Ltd [2007] NSWCA 340
Nicholson v Nicholson (1994) 35 NSWLR 308
Olsson v Dyson (1969) 43 ALJR 77.
Oxley County Council v MacDonald [1999] NSWCA 126.
Roberts v Johnstone & Anor [1998] 3WLR 1247
Rosecrance v Rosecrance (1995) 105 NTR 1.
Sharman v Evans (1976-7) 138 CLR 563
State Rail Authority of NSW v Brown [2006] NSWCA 220
Skelton v Collins (1965-66) 39 ALJR 480
Teuma & Anor v C P and P Kaybron Judd Pty Ltd [2007] NSWCA 166
Tolhurst v Associate Portland Cement Manufacturers (1900) Ltd [1902] 2 KB 660
Weideck v Williams [1999] NSWCA 346
Wilson v McLeahy (1961-62) 35 ALJR 256.

PARTIES:
Omar Baghdadi by his tutor Sami Kouri - First Plaintiff;
Sami Kouri - Second Plaintiff
Judith Cohen - Third Plaintiff
P & M Quality Smallgoods Pty Ltd - First Defendant
Austec Panel Systems Australia Pty Ltd - Second Defendant
Vidual Pty Ltd (in Liquidation) - Third Defendant
Kaybron (No5) Pty Ltd - Cross Defendant
and
Kaybron (No5) Pty Ltd - Plaintiff
Vidual Pty Ltd (in Liquidation) - First Defendant
Austec Panel Systems Australia Pty Ltd - Second Defendant
P & M Quality Smallgoods Pty Ltd - Third Defendant

FILE NUMBER(S): SC 20105 of 2005; 13906 of 2007

COUNSEL: Mr B Hull with Ms J Lonergan - Plaintiffs (action 20105 of 2005)
Mr S Campbell SC with Mr P Perry - P & M Quality Smallgoods Pty Ltd
Mr S Donaldson with Mr D O'Dowd - Austec Panel Systems Australia Pty Ltd
Mr P Webb QC with Mr G Hickey - Vidual Pty Ltd
Mr C Parker with Mr P Khandhar - Kaybron (No 5) Pty Ltd

SOLICITORS: George Mallos Lawyer - Plaintiffs (action 20105 of 2005)
Home Wilkinson Lowry Lawyers - P & M Quality Smallgoods Pty Ltd
James Tuite & Associates - Austec Panel Systems Australia Pty Ltd
Moroney Lawyers - Vidual Pty Ltd
Turks Legal - Kaybron (No 5) Pty Ltd

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Patten AJ

7 May 2008

No: 20105 of 2005

Omar Baghdadi by his tutor Sami Kouri
First Plaintiff
Sami Kouri – Second Plaintiff
Judith Cohen – Third Plaintiff

v
P & M Quality Smallgoods Pty Limited
First Defendant
Austec Panel Systems Australia Pty Limited
Second Defendant
Vidual Pty Limited (in Liquidation)
Third Defendant
Kaybron (No 5) Pty Limited
Cross Defendant

Kaybron (No 5) Pty Ltd - Plaintiff

v

Vidual Pty Limited (in Liquidation)
First Defendant
Austec Panel Systems Australia Pty Limited
Second Defendant
P & M Quality Smallgoods Pty Limited
Third Defendant

TABLE OF CONTENTS.

Paragraph

1. INTRODUCTION 1

2. THE PLEADINGS IN THE EARLIER ACTION 5

3. PLEADINGS IN THE LATER ACTION 17

4. THE ACCIDENT 20

5. P & M 25

6. AUSTEC 65

7. VIDUAL 82

8. EXPERT EVIDENCE 126

9. STATUTORY PROVISIONS 131

10. SUBMISSIONS AS TO LIABILITY 135

11. ATTRIBUTION OF LIABILITY 151

12. APPORTIONMENT OF LIABILITY 161

13. THE EVIDENCE OF MR KOURI 172

14. THE EVIDENCE OF MRS COHEN 213

15. OMAR’S MEDICAL REPORTS 258

16. THE PROVISION OF HOME CARE FOR OMAR 400

17. PROVISION FOR OMAR’S HOUSING 401

18. MEDICAL REPORTS – MR KOURI 405

19. MEDICAL REPORTS – MRS COHEN 413

20. THE DEFENDANTS’ MEDICAL EVIDENCE 422

21. OMAR’S ACTION – ISSUES IN CONTENTION 465

22. LIFE EXPECTANCY 466

23. OMAR’S DAMAGES 473

Provision of Spa Pool 508

Air Conditioning and Ceiling Hoist 509

Past Out of Pocket Expenses 546

Future General Out of Pocket Expenses 557

Future Attendant Care 560

28. THE ACTION BY KAYBRON 568

29. SUMMARY OF OMAR’S DAMAGES 591

30. THE OPERATION OF SECTION 151 Z OF THE WCA 593

31. ASSESSMENT OF DAMAGES – Mr KOURI 597

32. ASSESSMENT OF DAMAGES – MRS COHEN 620

33. ORDERS AND DECLARATIONS 634

JUDGMENT:

INTRODUCTION:

1 The First Plaintiff to whom, in order to avoid confusion and without meaning disrespect, I shall hereafter refer as Omar in action 20105 of 2005 (the earlier action) claims damages in respect of injuries sustained at his place of employment 18 Hume Highway, Chullora (the factory) on 7 August 2002. The Second Plaintiff in the earlier action (Mr Kouri), and the Third Plaintiff (Mrs Cohen), are Omar’s parents and sue for mental or nervous shock, arising out of their son’s injuries.

2 The Plaintiff (Kaybron) in action 13906 of 2007 (the later action) was Omar’s employer at relevant times. It sues under s 151 Z (1) (d) of the Workers Compensation Act (WCA) to recover, by way of indemnity, compensation paid in respect of Omar’s injuries.

3 At the hearing Omar, Mr Kouri, and Mrs Cohen were represented by Mr B Hull with Ms J Lonergan. P & M Quality Smallgoods Pty Ltd (P & M) was represented by Mr S Campbell SC with Mr P. Perry; Austec Panel Systems Australia Pty Ltd (Austec) by Mr S Donaldson SC with Mr D O’Dowd; Vidual Pty Ltd (Vidual) by Mr P Webb QC with Mr G Hickey; and Kaybron by Mr G Parker with Mr P Khandhar.

4 The hearing, which concerned both issues of liability and of damages, altogether occupied some 40 days. There were many hundred pages of exhibits.

THE PLEADINGS IN THE EARLIER ACTION:

5 The somewhat prolix and complicated pleadings were amended on several occasions, including during the trial. Ultimately, Omar, Mr Kouri and Mrs Cohen relied on their Second Further Amended Statement of Claim dated 26 November 2007, filed in court by leave. I will hereafter simply refer to this document as “the Statement of Claim”.

6 In the Statement of Claim, Omar pleaded, as I will briefly attempt to summarise, that at material times he was employed as a general hand at the factory owned and occupied by P & M; that P & M contracted with Austec to carry out certain works in the factory (the works); that the works included the removal of the ceiling above a curing room; that Austec subcontracted part of the works to Vidual; that the ceiling to be removed supported the compressed cement sheet floor of an alcove on a mezzanine floor, open to workers at the factory; that Vidual removed the ceiling thereby leaving the floor of the alcove without support; and that Omar, in the course of his employment, entered the alcove, causing its floor to collapse whereby he fell 4.6 metres to the floor below and suffered catastrophic injury.

7 It was pleaded that each of the three defendants had a duty of care to Omar, which was breached. It is unnecessary to dwell upon the particular breaches asserted except to say that they were comprehensive. A cause of action based upon asserted breaches of the Occupational Health and Safety Regulation (the Regulation) was also pleaded. Again, it is unnecessary to detail the particular breaches relied upon.

8 P & M admitted on the pleadings that it owned and operated the factory where Omar worked as an employee of Kaybron. It also admitted contracting with Austec for the carrying out of the works but put in issue other matters alleged. It denied negligence and breach of statutory duty. It also alleged contributory negligence by Omar and placed reliance upon s 151 Z of the WCA claiming that Kaybron was (in the event of liability by P & M) a joint tort feasor.

9 Mr Kouri and Mrs Cohen both pleaded that they suffered nervous shock as a result of becoming aware of Mr Baghdadi’s injuries. P & M put in issue the elements of that claim.

10 Austec put in issue most matters alleged against it but admitted that it contracted with P & M to carry out the works and asserted that part of the works was subcontracted to Vidual. It denied any breach of duty, either statutory or at common law. It also relied on the provisions of the WCA.

11 Vidual denied that it subcontracted with Austec. It asserted that Austec, in fact, subcontracted with a company related to Vidual, namely Special Transformers Pty Ltd (Special Transformers) and that it carried out the relevant work. In any event, Vidual denied breach of duty, either at common law or by statute, and pleaded contributory negligence by Omar. It also pleaded that in the event it is found liable to Omar, it is entitled to contribution from Kaybron as a joint tortfeasor.

12 Omar, Mr Kouri, and Mrs Cohen, in their reply to Vidual’s defence, pleaded that it is estopped from asserting that it was not relevantly a subcontractor of Austec and is also estopped from asserting that it did not carry out relevant works at the factory.

13 The three defendants to the earlier action brought various cross claims. P & M cross-claimed against Austec seeking indemnity under the terms of its contract or, alternatively, indemnity or contribution pursuant to section 5 of the Law Reform (Miscellaneous Provisions) Act 1946 (the Law Reform Act). I have treated this as being in issue between P & M and Austec, although I have been unable to locate a formal defence.

14 P & M also cross-claimed against Vidual seeking indemnity or contribution under section 5 of the Law Reform Act. Vidual denied liability in respect of this claim.

15 Austec cross-claimed against P & M, Vidual and Kaybron. Against all three, it sought indemnity or contribution under section 5 of the Law Reform Act. Against Vidual, it claimed a contractual entitlement to indemnity under an implied term. Vidual denied liability in respect of this claim.

16 Vidual cross-claimed against Kaybron pursuant to section 5 of the Law Reform Act. It also, under the same section sought indemnity or contribution against both P & M and Austec. It may be taken that all three put the claims in issue, although the pleadings themselves seem rather confused and extremely confusing.

PLEADINGS IN THE LATER ACTION:

17 In the action, Kaybron pleaded against Vidual, Austec and P & M that as at 23 October 2007, it had paid $5,678,991.63 on behalf of Omar under the WCA and was entitled to indemnity under s 151 Z (1) (d). In support of its cause of action it pleaded negligence and breach of statutory duty in similar terms to those pleaded by the plaintiffs in the earlier action. Vidual denied liability as alleged and again asserted, in effect, that any relevant contract was made between Austec and Special Transformers Pty Ltd rather than with Vidual, and that any relevant work was performed by Special Transformers Pty Ltd. Austec admitted its contract with P & M but denied any breach of duty arising by statute or otherwise. It also raised the defence encapsulated by the following 3 paragraphs:

“21.3 states that the Plaintiff has made ex gratia payments to or on behalf of the worker that were not made pursuant to the (WCA);

21.4 states that the Plaintiff has made ex gratia payments to or on behalf of third parties that were not made pursuant to the (WCA); and

18 P & M denied any breach of duty, statutory or otherwise; pleaded the contributory negligence of Omar, and denied that the sum claimed by Kaybron represented “payments” which (Kaybron) was required to pay under the WCA. P & M also pleaded that any right of indemnity which Kaybron may have against it is diminished by the contribution to which P & M is entitled under section 151 Z (2) of the WCA in respect of Kaybron’s own breach of duty.

19 Austec, perhaps unnecessarily, cross-claimed against P & M and Vidual for indemnity or contribution pursuant to section 5 of the Law Reform Act.

THE ACCIDENT:

20 It was common ground and, as I have indicated, largely admitted on the pleadings that as at 7 August 2002, Omar was employed by Kaybron as a general hand at the factory, where P & M was engaged in the production of smallgoods.

21 It was also common ground that Omar’s actual workstation was a “boning” room on the ground floor and that he had free access to an amenities room in another part of the factory. His route from the boning room to the amenities room took him up some nearby stairs along a lengthy corridor running in an east/west direction on the mezzanine floor thence along another short corridor from which descended another set of stairs to the amenities room

22 The southern wall of the long corridor at one point opened into a small vestibule from which a staircase led to the ground floor. A few metres to the west of this vestibule there was another opening in the southern wall of the corridor. At the mouth of the opening was a metal plated step 670mm high to which was attached a two step metal ladder. Beyond the step was, what was described in evidence, and which I will hereafter call an alcove, about 1200mm long and about 800mm wide. At the end of the alcove was a door, numbered 427 on plans, which opened inwards towards the alcove. Beyond the door was a large area between the ceiling of the ground floor rooms and the pitched factory roof. The area, provided with walkways, was used for the housing of factory machinery. The alcove and door were obviously designed to provide access to such machinery. There were similar points of access to the ceiling area in other parts of the factory.

23 At about 1.30pm on 7 August 2002, Omar was found by Mr Steven Lindner and Mr Roger Timms, lying unconscious on the concrete floor immediately underneath the alcove. Pieces of the pressed cement board which previously constituted the flooring of the alcove were near him. A gaping hole appeared in the floor of the alcove above him.

24 Although no one saw Omar fall, it is to be inferred that he entered the alcove and that the floor gave way under him. He fell a distance of 4.6 metres on to concrete. He has since been unable to speak or otherwise provide any explanation of what occurred.

P & M:

25 It is convenient to commence a review of the evidence in this somewhat complex case by referring to the testimony given by other workers for P & M at the factory who were called by Mr Hull.

26 The most senior of them was Mr Tony Stills, now General Manager Projects. To a large extent his evidence in chief was constituted by the admission into evidence as exhibit AR of a Record of Interview conducted on 9 September 2003 with Mr David Singh, a WorkCover inspector, supplemented by some additional written information subsequently sent to Mr Singh. The Record of Interview and the supplementary information, after some debate, were, with insignificant exceptions, admitted as evidence against all defendants.

27 Mr Stills was actually employed by another company in what might be described as the P & M Group, Homebush Unit Trust Pty Ltd, but his role as at 7 August 2002 was Project Manager for P & M, which traded as Primo Smallgoods. Kaybron is another company in the group. He was responsible for P & M’s large capital works projects at various plants and abattoirs. He reported to the Managing Director and the General Manager of Plants and Abattoirs. He had been with P & M since about October 1999.

28 The boning room where Omar worked was, he said, 50–70 metres from where he fell into an area then known as the “Laboratory Area”. This became, following completion of the works in progress at the time of the fall, the “New Salami Processing Area”.

29 Mr Stills described the place from which the Plaintiff fell as “a raised alcove off the corridor (which) provides for service and maintenance access to the ceiling space above the factory”. He said that the ceiling space was also known as the “Suspended Ceiling Area”. He said that the corridor was used by workers “as transit from the amenities to the production area”.

30 At the time of the fall, according to Mr Stills, Austec, under contract, was constructing five new salami rooms involving “demolition of wall and ceiling panels, concrete curbing (sic) and construction of new panel and curbing (sic) and associated services”. He said that it was classified as a “minor” project and that he had no direct involvement. He said that Mr Livio Versi, whom he described as “Chief Engineer”, would have been responsible. Mr Versi reported to General Manager, Mr Peter Treneman.

31 After the accident, Mr Stills said that access to the alcove from the corridor was blocked with a plywood sheet. I interpolate that it appears this was done within hours if not minutes of Omar’s fall

32 In earlier records of interview on 8 and 12 August 2002, Mr Stills said that he had been aware of the progress of the works, “I have stuck my head in there about three or four times”, and had noticed that the ceiling had been removed.

33 As to the implication of the ceiling in the works, there were these questions and answers:

“A. Originally I did not expect the ceiling to be removed. However, it became apparent that equipment that was to sit above the “Salami Curing Rooms” in the ceiling void would create a conflict between the rafters and the existing ceiling. The equipment would not fit in the ceiling void. It was known before the works were started that the ceiling was required to be removed.

Q. Why was the ceiling removed?
A. The ceiling was required to be lowered to accommodate the process equipment that is to sit on top of the ceiling in the ceiling space.

Q. What type of ceiling was above the “Salami Curing Rooms”?
A. It was an insulated sandwich panel suspended from the roof and trafficable as per the rest of the factory.

……………………………………..

Q. Prior to the incident did you consider that the removal of the ceiling would have any effect on the integrity or support of the flooring of the alcove from which Omar Baghdadi fell?
A. The decision was driven by the need to fit the machinery in the ceiling void.

…………………………………..

Q. Prior to the incident did you have any concerns that the removal of the ceiling would have any effect on the integrity or support of the flooring of the alcove from which Omar Baghdadi fell?
A. No. I was not involved or consulted so I did not turn my mind to issues of the alcove or ceiling. The original plan I had drawn up was on the basis the ceiling would not be removed. One would have reasonably assumed that the contractor who was responsible for removal of the old and installation of the new would have identified a problem area and drawn it to someone’s attention or provided temporary support if a problem area was identified.

Q. Did you see any risks arising out of the removal of the ceiling so far as the alcove was concerned?
A. The risk I saw was that someone might go out through the door from the walkway that formerly led to the ceiling space onto open space.

Q. Was that risk addressed in any manner?
A. Red and white safety tape was placed across the entrance to the alcove, a sign was placed there but I cannot recall what it said and the door was locked.

Q. Do you know who took the measures that you just described?
A. I was told by someone it was the contractor.

Q. Prior to the incident did you consider that the alcove was properly supported after the ceiling had been removed?
A. Before the incident I did not turn my mind to it. However, when I was there inspecting the alcove with Livio from the walkway, before the incident, I would have contemplated that the alcove was part of the walkway structure.

Q. What does that mean in terms of support to the alcove?
A, The walkway is a hanging structure hanging off the roof structure and so the alcove is part of that.

34 In cross-examination by Mr Perry, Mr Stills said that “as built” plans of the factory, handed over by the original builder, were used in connection with the construction of the new salami rooms and that an architect was not engaged to draw up plans for the new work.

35 Mr Stills expressed to Mr Donaldson his understanding of the support for the floor of the alcove:

“Q. When you looked at this alcove, with your knowledge of the building, you thought the alcove and the corridor structure was all solid and discrete?
A. And part of the walkway, yes.

Q. Indeed, there was signage warning people about weight restrictions on the other side of the door, on the alcove, wasn't there?
A. On the walkway side of the doors, yes.

Q. But there was signage which indicated that there were weight restrictions in the ceiling space that needed to be observed?
A. Yes, there were.

Q. And there was no signage to suggest that there were weight restrictions associated with the alcove floor?
A. Correct.

36 Later, he agreed with Mr Donaldson that the construction of the new salami rooms was initiated by those on the production side of P & M who had indicated that additional salami production capacity was required. It was as a consequence that he and Mr Versi became involved.

37 As to whether there was any plan of the works, he told Mr Donaldson that one would have been prepared “looking down so it wouldn’t have dealt with height as such ……it would have been together with Livio, pen or pencil lines to denote rooms of a particular width and a particular length and a particular area of the building”. There was then this exchange with Mr Donaldson:

“Q. The width and length and height of these salami rooms is something that is dictated by the tasks that they have to perform, correct?
A. And by the equipment.

Q. And by the equipment that is going to be used?
A. Mmm.

Q. These are salami curing rooms, correct?
A. Correct.

Q. So the salami curing process, can we assume, is a process which is driven in part by, or is produced in part by the maintenance of a particular environment in the room in which the salami is curing?
A. Correct.

Q. As to temperature and humidity?
A. Correct.

Q. And these Travaglini machines that we have heard about are machines that are used to produce that environment?
A. Correct.

Q. And would I be right in assuming that the capacity of the machine that you use will dictate the dimensions of the salami room that it can service?
A. Correct. And the quantity of salami that's in the room too.

Q. And this working group involved people who were expert and experienced in the salami production, correct?
A. Treneman is the manager of the factory and is the production man. Livio, chief engineer, understands salami rooms and the equipment that goes with it.

38 Mr Parker asked Mr Stills whether any of the original plans revealed the “support structure” for the alcove. He received this answer:

“A. Not specifically the alcove. We hunted through high and low, as was requested by various parties, and there are clearly details of the hanging support structure for the walkway, as such, but it didn't get into the detail or, indeed, an adequate cross-section, to identify support of the alcove floor. “

39 Mr Webb questioned Mr Stills about his early involvement in the new salami rooms:

“Q. You were involved, at least in the beginning of the decision, as to where to place these newly acquired salami rooms. That's true, isn't it?
A. Can I have that question again? Just the latter part of it.

Q. You looked at the as-built plans in order to determine where these new rooms could best be built within the existing structure. That's correct, isn't it?
A. I think I was probably led to where they wanted to put the rooms, rather than somebody said to me: Now, Tony, where can we put these rooms in this big facility? I think other parties that knew more about production had decided where the optimum location was, and whether it was a case of being able to fit them, pull out an as-built architectural drawing that showed that particular area and, together with others, draw lines on to show a number of rooms.

Q. Correct me if I am wrong, but, whether or not you were involved in the original decision, you certainly had something to do with, I think you referred this morning to, making marks on the as-built plans?
A. Yes.

Q. You certainly were personally involved in that process, weren't you?
A. Yes.

40 Mr Stills agreed with Mr Webb that he continued to have some involvement with the works, in that he recalled that on one occasion from the ceiling side of the alcove he observed that the door to the alcove was barricaded and unable to be opened. His recollection was that this was before any works were commenced.

41 He also recalled an occasion when he and Mr Versi went to the alcove together and Mr Versi tried unsuccessfully to open the door. He could not recall whether there were two separate inspections or whether they were carried out on the same occasion. Nor could he recall whether Mr Versi tried to open the door standing on top of the metal plated step or from within the alcove itself. So far as he could remember, there was no tape across the entrance to the alcove at the time of his inspection. He did, however, see tape across the opening on more that one occasion. He agreed with Mr Webb that the corridor is busy and that he had occasion to pass along it from time to time.

42 Referring to the stairs located close to the alcove, Mr Stills said that these were removed as part of the salami room works, possibly by P & M maintenance staff, and that before Omar’s accident the opening in the corridor was blocked off with plywood.

43 Asked whether it would have been simple and inexpensive to block off the opening to the alcove with plywood, Mr Stills said “if you had decided that that was a risk”.

44 Mr Livio Versi said that like Mr Stills, he was employed by Homebush Unit Trust Pty Ltd as Chief Engineer. He said he worked at relevant times for P & M and had technical qualifications pertaining to food machinery. His work involved him in the engagement of contractors.

45 Mr Versi’s records of interview with Mr Singh, respectively dated 13 June 2003 and 1 August 2003, and his statement dated 13 June 2007 were admitted as exhibit X and largely constituted his evidence in chief. He said that he reported to Mr Treneman and in conjunction with him and Mr Stills organised the salami room works. He said that Austec quoted for the job and this was followed by a written order. There was no other written contract.

46 In his statement Mr Versi explained his involvement with the new salami rooms:

“Some time in the early part of 2002, I became involved in a working group that was looking at the provision of more rooms for the production of salami at the Chullora site. The group consisted of Peter Treneman, the General Manager, David Newman, the Factory Manager (Production Manager), Tony Stills, the Project Manager and myself. From time to time other employees were consulted about particular issues in relation to the work. I cannot now recall how many meetings of the group were held, but ultimately it was resolved that five additional salami rooms would be constructed in the area then occupied by the laboratory. The laboratory consisted of a number of adjoining rooms including an office, storeroom, and more than one laboratory room.

The proposed builder was Austec Panel Systems Australia Pty Ltd. Austec was at that time engaged in a project on behalf of Primo at the Scone plant. I understood that other providers would be involved in the project, such as fire-sprinkler people, electricians, plumbers and concreters. But responsibility for the work of demolishing the existing lab and constructing the new rooms would fall to the builder. This was to maintain an access corridor for the other rooms. But no structural design of any kind was performed by Primo. Nor did Primo have any hand in the demolition or the construction work.

I arranged to meet Joe Zadro of Austec Panel Systems on site. To the best of my recollection this was between 2 days and a week prior to the submission of Austec’s quote on 22 May 2002.

When I met Mr Zadro, I conducted him on an inspection of the existing laboratory, the site of the proposed renovation. I provided him with a copy of the relevant page of the original drawings for the construction of the Chullora plant. While in the laboratory, I said to Mr Zadro the following:
“This wall is a starting point for the new rooms”

47 In a record of interview Mr Versi said he only provided Austec with the dimensions of the salami rooms to be constructed as no building plans or working drawings had been prepared. He also said that Mr Zadro inspected the site “a couple of times” before the work commenced, including an occasion when he, Mr Versi, took Mr Zadro into the ceiling space and showed him the areas of ceiling which needed to be removed.

48 By letter dated 22 May 2002, Austec quoted a lump sum price of $99,589.60 for “Demolition of Panel Work”, “Concrete Plinth – Demolition and 5 “New Salami Curing Rooms”.

49 On 23 May 2002 Austec quoted a further sum of $40,235.80 for “new laboratory”.

50 Subsequently, by order No 30611 (which seems to be undated), addressed to Austec, P & M placed an order for:

“Demolition of Panel Work and Concrete Plinths $

Construction of New Salami Rooms $90,536

Panel Construction for New Lab $36,578

51 Mr Versi said that he was aware that other contractors would need to be involved, including Fire Control, in relation to the fire protection service; Bass Electrical in relation to electrical work; British Paving for the construction of concrete plinths; and Eveready Plumbing for drainage work.

52 Mr Versi saw his role, in effect, as the person responsible for organising the work and the contractors and ensuring that factory production was not interrupted.

53 Before Austec embarked upon performance of its contract, there was evidence that Bass Electrical removed and isolated electrical fittings in the old laboratory area (the site of the new salami rooms); Fire Control disconnected five sprinklers in the area; and L & A Joinery removed furniture and fittings. Mr Versi said that P & M maintenance workers removed the stairs near the alcove and barricaded the opening from the corridor with ply board.

54 As all the above mentioned work needed to be performed before Austec commenced to fulfil its contract, Mr Versi remained in contact with Mr Zadro as to when Austec’s men could start on site. The demolition actually commenced on Saturday, 22 June. As Mr Versi explained:

“The first part of the work was in an area which was different from the area where the new salami rooms were to be constructed. This work involved the dismantling and removal of existing panelling. Primo then relocated salami production equipment. This meant that there was an interval of approximately 2 weeks, and maybe a little more after the first dismantling work was done by Austec, and before the main part of the work, which was the dismantling and subsequent rebuilding of the salami rooms commenced.”

55 When, as it seems, men returned to the site between early and mid July for the demolition of the existing laboratory, Mr Versi met a man who introduced himself as “Steve” and was, I infer, Mr Steven Lindner. He said “from time to time Steve spoke to me concerning his requirements for matters such as rubbish removal, power to the area, access for forklifts, access for material etc.”

56 According to Mr Versi, Austec’s operations were then confined to an area sealed off from the rest of the factory and only he entered on behalf of P & M.

57 Mr Versi’s statement continued:

“I recall being asked by Steve, soon after he commenced work to inspect some work that he had performed in the ceiling area. I accompanied Steve into the ceiling space by a door some distance away from the alcove, which was subsequently the site of Mr Baghdadi’s accident. When we went into the ceiling, Steve showed me a door, and told me that he had secured the door to prevent people from using it when the ceiling was removed. (The alcove through which Mr Baghdadi later fell was behind this door.)

I saw that the door had been barricaded by the use of both horizontal and diagonal tape. I also saw that a metal bar had been taped in a horizontal position completely across the face of the alcove where it protruded into the ceiling space. This horizontal bar was at the level of the door handle. The door handle was, I saw securely taped to the bar.

I was standing beside Steve and approximately three or four metres away from the door. The area was lit by fluorescent overhead work lights. I did not go into the area between me and the door, as it had been barricaded off by Steve, I understood in preparation for the removal of the ceiling. I am unsure whether at that stage any part of the ceiling had been removed. This meeting took place at the end of the day, Steve showed me, by indicating with his hand and by some verbal description both the barricading of the door and also the securing of the perimeter of the area where the ceiling was to be removed.

“Livio, I need to show you something. OH&S says I have to have you see what I’ve done to secure the work area.”

I am aware that my WorkCover record of interview dated 12 August 2002 might suggest that the ceiling had already been removed at the time of this inspection. I am not sure that was the case. It was not my intention to suggest that. I understood references to the removal of the ceiling to be references to the area where the ceiling was to be removed. Steven Lindner was most insistent on showing me the OH&S steps he had taken before any demolition work was to take place.

After leaving the ceiling area, Steve said to me: “Now, I want to show you what I’ve done on the other side”.

We left the ceiling and walked to the corridor side of the alcove. I saw that the entry to the alcove from the corridor had been taped off with strips of blue adhesive tape. The upper points of this tape were approximately 2.5 metres above the corridor floor. The lower part of the tape was only just above the corridor floor. In my WorkCover record of interview dated 9 August 2002, I provided a diagram which showed how the tapes had been placed by Mr Lindner across the alcove. There was a sign on cardboard placed where the tapes intersected. I no longer remember what the sign said but in some way it warned people not to enter. I remember physically checking the doorway handle to see that the door could not be opened.

I am told that by letter from Edwards Michael Moroney Lawyers dated 26 September 2006, it has been alleged that I instructed Mr Lindner that he was not to put any marks on the outer wall of the corridor saying words to the following effect “you cannot put any holes or screws in the walls to board the doorway off”, and that I informed Mr Lindner he was to use tape to secure a barrier in front of the door and that I, in fact, provided him with blue electrical tape. I totally deny those allegations. I did not say to Mr Lindner that he could not put holes or screws into the walls to board the doorway off. I had no such concern. I did not tell him to use tape. I did not provide him with the blue tape that he had used. When I attended with Mr Lindner to inspect the alcove the tape was already there.

After this there were a couple of times when walking along the corridor, I noticed that the tapes had partly fallen down or had been torn away. On those occasions I reattached the tapes to the side walls of the alcove. In order to do so, I may have stood on the metal steps or on the metal threshold to the alcove floor. I did not stand on the alcove floor. It would have been difficult to reattach the tapes standing there.

58 The work of demolition of the laboratory walls, partitions, and ceiling extended over some days. The demolition workmen, including Mr Lindner, then left the site for “a week or so” while British Paving came on to the job and installed concrete plinths on what was to be the floor surface of the new salami rooms.

59 At about 1.30pm on 7 August 2002, Mr Versi was told of Omar’s fall. He went to assist and telephoned triple O for an ambulance. He observed the hole in the floor of the alcove.

60 Mr Versi estimated that about 250 workers in the factory used the corridor up to 4 or 5 times a day.

61 Mr Roger Timms was employed as a fitter at the factory, reporting to Mr Versi, and was present in the factory at the time of Omar’s fall, being in a stairwell about 25 to 30 feet away when he heard a loud crashing noise. He went to investigate and found Mr Baghdadi lying on the floor. He checked his pulse and breath and arranged for an ambulance to be called.

62 He looked up and saw the hole in the alcove floor. He then went to the alcove to investigate and said there was nothing barring entrance to it, although there were remnants of blue tape attached to the sides of the opening from the corridor. He had noticed blue tape there when he passed on previous occasions. Mr Timms said he was familiar with the area between the ceiling and roof of the factory as he frequently had reason to enter it in the course of his work.

63 On one occasion, Mr Timms said that after the ceiling had been removed but before Mr Baghdadi‘s fall, he went into the alcove, opened the door into the roof space and tried unsuccessfully to reach and repair a leaking valve. This piece of evidence was in such conflict with other evidence, which I accept, as to the securing of the door before the ceiling was removed that I think Mr Timms was mistaken as to the occasion. I reject this part of his evidence, which was not, in any event, of particular importance.

64 Another witness, Mr Steven Bertram, was also employed by Homebush Unit Trust Pty Ltd in August 2002. He was the Human Resources Manager responsible for all employees who worked for P & M at Chullora. He said that there were in all about 20 employer companies. Kaybron employed about 50 workers out of a total of about 900 who worked at the factory. He described Kaybron as a “service company designed to employ some members of the employees, certain groups of employees that worked in the factory at Chullora”. He agreed that he was referring to those who worked in the boning room

AUSTEC:

65 The only employee of Austec who gave evidence was Mr Zadro. As with P & M workers, he was called in the Plaintiff’s case, although an affidavit sworn by him on 2 October 2007 was filed by Austec.

66 Mr Zadro, a plumber by trade, said that he first had contact with the former owners of Austec when he performed plumbing contracts for them. Later, he became manager of the Austec business and he and his wife acquired the company about 1993. He said that Austec manufactures “sandwich panels” used as wall and ceiling panels in a variety of industrial applications, including the construction of cool rooms. It contracts for the supply and installation of the panels it manufactures and also for associated work such as the dismantling and disposal of existing panelling. However, it subcontracts all installation and dismantling work.

67 His first association with P & M related to a project it had at Scone, in respect of which he dealt with Mr Stills. In connection with the Scone contract, Mr Steven Lindner introduced himself and according to Mr Zadro’s affidavit said:

“I used to work for James Hardie doing the building work for their panelling projects. I have built a number of large cold stores and have a lot of experience with panel installations. I have just returned from South Africa where I have been contracting and I am setting up a contracting business here. If you need a contractor for your panelling projects I would be interested.”

68 Mr Zadro said that he subcontracted with Mr Lindner for the installation at the Scone job. He told Mr Stills that Mr Lindner was his installation subcontractor. He was satisfied with Mr Lindner’s performance.

69 In relation to the Chullora project, Mr Zadro’s affidavit states:

I attended Primo’s premises at Chullora in or about early May 2002 to inspect the area where the jobs were to be performed. I recall that Livio Versi (Livio) was with me at the time of the inspection. Tony might also have been present.

“We want five sandwich panel rooms in this area. We are going to use them as salami rooms”.

“This is where you will start the salami rooms. The rooms need to be build out from here”.

“The side walls of the laboratory need to be removed and so does the panelling around the staircase. The dividing walls in the laboratory have to come out as well”.

“When you build the salami rooms we need sliding doors, the aluminium extrusions are to be powder coated white, all the rivets need to be sealed and the internal joints of the panels need to be over sealed.”

They gave me the proposed dimensions of the rooms and I may also have made some measurements to confirm them. I recorded the measurements on the plan they had given me.

“The ceiling height for the salami rooms needs to be the same height as the ceiling in the laboratory. The ceiling will extend at that height right across the new salami rooms”

I then measured the ceiling height of the laboratory, which was about 3.5 metres, and recorded the measurement on the plan. I also recorded the ceiling height in the existing rooms, which was about 4.5 metres.

“This section of the existing ceiling has to be removed so we have space to fit our equipment for the new salami rooms. The equipment will sit just above the new salami room ceiling which will be below this level.”

“We will remove all of the services and fittings from the laboratories and the stairs. We want you to remove the panelling and demolish the hobs. We will want you to remove the partition wall between the salami room and the research and development room and put a plastic screen around your work area before you start removing the panelling. We can then move our salami production away from your work area. You should get in touch with British Paving to price the demolition of the hobs and the construction of the new hobs.”

“We will be removing all this before you remove the panelling.”

“There will be a delay between stages 1 and 2 of Scone and this job should fit nicely into that.”

Austec used the plan that Primo had provided to it to create a plan of the area identifying where the work was to be performed and sections showing the dimensions of the new salami rooms and the detail of the new plinths.

“I have another job for Primo at Chullora that you may be interested in.”

I understood at that time, through my dealings with Vidual in connection with the Scone works that Vidual was the company through which Steve carried on his contracting activities and Vidual would undertake the work at Chullora.

I also contacted Paul O’Neil from British Paving and asked him to give a quote for the concreting work required for the salami room works. I attended Primo’s Chullora premises with Paul whilst he was inspecting the area to prepare the quote.

On 17 May 2002, Austec received a quote from British Paving Company Pty Ltd (British Paving) to demolish and construct the concrete hobs in the salami rooms.

I do not believe that I obtained a quote from Vidual at that time. However, I was aware of the hourly rates that Vidual was likely to charge Austec to do the work and that Austec would pay, and I was able to estimate fairly accurately the number of man hours that the salami room works were likely to take. I was therefore able to factor the cost of subcontracting the work to Vidual or another contractor into the quote that Austec provided to Primo.

After Austec had received British Paving’s quote I forwarded a letter to Primo to the attention of Livio quoting to perform the salami room works.

On or about 23 May I forwarded a letter to Primo to the attention of Tony Stills quoting to perform the laboratory works.

“I am giving Austec the job; be sure to be on site on the days required without fail.”

I was not told at that time that Primo wanted to impose any particular terms and conditions on Austec to perform the salami room works.

“We had been awarded the contract to do the salami room works at Primo’s Chullora premises and we want Vidual to do the work.”

I recall attending Primo’s Chullora premises with Steve Lindner to show Steve the works that Austec wanted to subcontract. I cannot recall whether that happened before or just after Austec had been contracted to the salami rooms works.

“This is Steve Lindner, the contractor for the panel removal and installation.”

Me: “I have allowed $18,000 plus GST to do the salami room works.”

Steve and I did not discuss any other terms of the contract though I did say that the work had to be completed according to Primo’s requirements. We also discussed the time that Primo had allowed for the work to be completed.

During my attendances at the Chullora premises with Livio, Tony, and with Steve we walked in the ceiling space immediately above the area where the new salami rooms were to be constructed.

I think that we used the alcove from which Omar Baghdadi is said to have fallen to enter the ceiling space. No one informed me on those occasions, or at any other time before Mr Baghdadi’s accident, that the alcove floor was in any way reliant on the ceiling panels for its structural support. There was nothing in the plan that Livio or Tony gave to me that suggested that the alcove floor was dependent on the sandwich panel ceiling for its structural support. At the time of my attendances at the site before the salami room works commenced it was not possible to see the underside of the floor of the alcove. The underside of the alcove could only be seen after the ceiling panels in that area had been removed.

Vidual and British Paving started the new salami room works on Saturday 22 June 2002. That commencement date had been specified by Primo as the date that the salami room works were to commence.

Austec’s dealings with Vidual in connection with the project at Chullora were no different to its dealings with subcontractors on all such jobs. It was agreed with Lindner that Austec would supply scaffolding, a scissor lift and black plastic sheeting which Primo had asked to be installed on the ground level. Austec also supplied all of the insulated panels and panel related material such as brackets and doors that were required for the job. Vidual provided all necessary tools and labour to perform the work, and co-ordinated its activities with Primo on site.

Vidual had complete discretion as to how it would perform the work. It determined who worked on the job and what tools and equipment were appropriate to perform the job. It was responsible for determining the rate of supply of materials required from Austec, though I did monitor the progress of the work to assess when panels would be required. I did not give any directions or instructions to Steve Lindner and his workers as to how the job was to be performed.

As was customary with Austec projects, I attended the site on an approximately weekly basis to check the progress of the work and to speak to the customer to ensure that they were satisfied with the quality of the work. Most of my site visits were of about an hour’s duration.

70 Mr Zadro said that he received a tax invoice from Vidual dated 25 June 2002 for the work performed on 22 June. He approved it for payment as part of the $18,000 plus GST agreed with Mr Lindner for the whole job.

71 Work resumed in early in July, according to Mr Zadro, shortly after he was requested to recommence either by Mr Stills or Mr Versi.

72 On 4th July, Austec sent an order to “Special Transformers & Install” for the attention of Mr Lindner. The body of the document which contained an authorisation by, and apparently, the signature of Mr Ham Kyung read:

including demolition

Build new Salami Rooms

73 Mr Ham Kyung, who was described by Mr Zadro as his “estimator”, did not give evidence. Mr Zadro explained the order in his affidavit:

“That document was created by Ham Kyung. I did not send that document and I do not know why it was created. At that time I knew that Steve’s wife and father-in-law operated a company known as Special Transformers Pty Ltd. I understood that that company manufactured transformers.

74 As to the progress of the works, Mr Zadro’s affidavit stated:

75 On or about 18 July, Austec received an invoice from “Special Transformers Pty Ltd, trading as “Special Transformers and Installations”. The invoice for $7,000 referred to “Primo strip out of existing panels for new salami curing room”. The invoice of $7,000 plus $700 GST was paid.

76 Mr Zadro said, in effect, that before Omar’s accident, he noticed nothing unusual about the floor of the alcove and saw nothing to suggest to him that the stability of any upstairs area, including the corridor and the alcove, would be “jeopardised by the removal of wall ceiling panels downstairs”.

77 In cross-examination by Mr Donaldson, Mr Zadro said that when he walked through the alcove with Mr Lindner and then into the roof space, he noticed that the walls of the alcove were sitting on the ceiling below but the floor of the alcove was higher than the ceiling outside and therefore appeared to be attached to the walls of the alcove.

78 He agreed with Mr Donaldson that Austec, Mr Lindner, and P & M were prosecuted in the Industrial Relations Commission and that Austec, on advice, pleaded guilty to the charge that contrary to section 8 of the Occupational Health and Safety Act, it being an employer failed to ensure “that people (other than the employees of the employer) are not exposed to risks to their health or safety arising from the conduct of the employer’s undertaking while they are at the employer’s place of work”.

79 Mr Zadro told Mr Campbell that when he quoted for the works in May 2002, he did not carry out a “risk assessment”.

80 He also told Mr Campbell that he did not see a tape barrier or a warning sign at the opening to the alcove, although he could see “where it had been”. He said that he did not tell either Mr Lindner or Mr Versi that the barrier had been removed. He agreed that he was aware that Mr Lindner had put up the tapes as part of his subcontract, although he qualified that answer by saying “it was never an item stated”.

81 In answer to Mr Campbell’s questions about his conclusion that the alcove floor was attached to the walls, Mr Zadro agreed that he made no further inquiries upon the subject and that he drew his conclusion on the basis of his experience in panelex construction. He said that he did not turn his mind to the possibility that the flooring was supported by what are known as “top hats” which, in turn, rested on the ceiling. Having looked at photograph 84, in exhibit AT, he agreed that the height differential between the ceiling and the floor of the alcove could have been bridged by “top hats”.

VIDUAL:

82 Mr Webb called Mr Steven Lindner. He said that he first commenced to erect insulated panels as part of the construction of refrigerated rooms as an employee of James Hardie in 1994. The company provided him with training.

83 He continued to work as an employee until 1996 when he went into business on his own account as a contractor in the same field. In 1999, he began to work under contract for Austec.

84 The first contract with Austec related to P & M’s work at Scone and for that he prepared a written quotation. For subsequent jobs, he agreed orally on a price with Mr Zadro or with Mr Ham. Once he established a relationship with Austec, it had enough work to keep him busy. He said that the panels manufactured by Austec were similar to the panels manufactured by James Hardie and there was little difference between the work he performed for Austec and the work he had been used to with James Hardie.

85 His arrangement was that Austec provided all materials and plant. He provided labour, his own and that of his employees, and tools of trade. He estimated his charges by reference to an hourly rate and his calculation of the time a particular job would take.

86 He said that he and his wife were the directors of Vidual. She worked in the office and used a computer to produce letterheads on stationary, invoices etc. She also carried out banking and attended to other administrative tasks.

87 He testified that in mid 2002, he had a conversation with Mr Zadro or Mr Ham relating to work to be performed for P & M at Chullora. He went to the factory to inspect the site and spoke to Mr Versi. He knew Mr Stills from the job at Scone.

88 He could not remember when he started work at Chullora but said his first job there was to repair a faulty door. He also could not remember when he started the main work but said he would have had an employee, Mr Jim Haigh, with him.

89 Mr Lindner said he was present at the factory when the stairs near the alcove were dismantled. At Mr Versi’s request, although he had played no part in the dismantling of the stairs, he had blocked off the opening in the wall of the corridor with a piece of the panelling supplied by Austec.

90 Over objection, because the matter had not been put to Mr Versi, I permitted Mr Webb to adduce evidence from Mr Lindner that he, at one point, spoke to Mr Versi about blocking off the alcove in a way similar to the blocking of the opening to the stairs, which had been removed. He said that he was told not to, for the reason that, as I understand the evidence, it was intended that the alcove would continue to be put to use as a means of access to the ceiling space. As the ceiling was being lowered this would have necessitated the construction of stairs on the ceiling side of door 427. As the alcove was effectively blocked immediately after the accident and as the alleged conversation was not put to Mr Versi, I am not satisfied that it occurred.

91 Mr Versi did, however, tell him to tape up and secure by that means the opening to the alcove from the corridor. He provided some tape and a sign for the purpose. Mr Lindner said that he then, from the ceiling side, with an iron bar, prevented the door from being opened and he also placed blue tape across the opening and attached a cardboard sign with a warning message.

92 This means of restricting access to the alcove, if that were the purpose, was obviously ineffective, as it is clear from the evidence that the tape dropped off or was pulled off by passing workers. I am satisfied that by the time of Omar’s fall there was no tape across the opening and it is unlikely that the sign was attached as it could not be located afterwards.

93 It is also plain that the intention of both Mr Versi and Mr Lindner was focused on door 427 and not on the floor of the alcove. It is difficult to understand why they thought it desirable to discourage people, even in such a half hearted fashion, from entering the alcove when the door at the end of it, which, if opened gave rise to obvious danger, was effectively barred.

94 In any event, I accept Mr Lindner’s evidence on the subject. I am satisfied he did exactly what he said he did.

95 Mr Lindner said that he removed the walls and ceiling of the existing rooms underneath where Omar fell, with the aid of a forklift or scissors lift brought in for the purpose. He said that he had a recollection of removing the ceiling in the vicinity of the alcove. Asked whether there was anything else there, he replied, “I didn’t see anything which shouldn’t have been there”.

96 After removing the ceiling and the walls of the rooms to be demolished, he went to another job for about 3 weeks, returning a day or so before the accident. According to his testimony, other tradesmen had been there in the meantime; refrigerator pipes, fire pipes and electrical wiring having been taken away. I should say that I do not accept this part of his evidence, which is inconsistent with other evidence, and what I regard as the probabilities, that the pipes and wiring were removed before Austec started work under its contract to dismantle the existing laboratory walls and ceiling. More significantly, the concrete plinths had been constructed and the area was ready for him to erect the panelling for the 5 new salami rooms.

97 During his time at the factory, Mr Lindner said he saw Mr Versi every day as he would routinely inspect progress of the work. He would also organise any work required to be done by P & M’s own maintenance staff. He gave evidence of an occasion when he and Mr Versi were standing in the area where the new rooms were to be constructed when they looked up and saw from the ceiling side (the ceiling having been removed) the handle of door 427 being turned. Mr Lindner called out and went upstairs to investigate. He found that the blue tape he had placed across the entrance to the alcove had fallen down. He said that he reattached it and replaced the warning sign.

98 Mr Lindner identified from records produced by Department of Fair Trading, an application for registration of the business name “Special Transformers & Installations” in his wife’s handwriting. The application was dated 20 June 2002 and showed that the application was made on behalf of Special Transformers, the proposed business was “Construction of Cold Storage Units”, the proposed date of commencement of business was 1 July 2002 and principal place of business was stated to be 1 Argyle Street, Arncliffe NSW. According to Mr Lindner, he and his wife Lesle were the directors of Special Transformers.

99 Mr Lindner identified an invoice exhibit 3D-25 addressed to Austec dated 26 July 2002 on the letterhead of Special Transformers & Installations. The invoice related to work at Orange. There was this exchange with Mr Webb:

“Q. What happened at 1 Argyle Street, Arncliffe, Mr Lindner?
A. That was where we manufactured transformers and I run the construction company out of, Vidual as well.

Q. Who worked there in the office?
A. My wife worked the office.

Q. Mr Lindner, at some stage in 2002 was the letterhead which you have in front of you at the moment used in relation to work done for Austec?
A. Yes.

Q. Do you remember what that time was?
A. No.

100 During cross-examination by Mr Donaldson, Mr Lindner accepted that the price of $18,000 plus GST he had agreed with Mr Versi was a lump sum price against which he made progress claims at various stages of the work.

101 Mr Donaldson cross-examined Mr Lindner regarding his removal of the ceilings:

“Q. And was there a specified procedure that you always adopted in relation to the removal of the ceiling panels?
A. Yes, there is.

Q. And as you understood it, that was a procedure directed to making sure the job was done safely?
A. Safely, that is correct.

Q. Had you written that down yourself for the purpose of this specific job, that sort of procedure?
A. At that time, no. No, we didn't have that system in place.

Q. How well did you understand the procedures that needed to be adopted for the safe removal of the ceiling panel?
A. Myself, I understood it very clear.

Q. Would it have made any difference to you to have had them written down at that time, do you say?
A. No, because at that stage I had trained the people that were working with me, my casual labourers, the guys, to adopt it this way, and why we had it, and I did take time with them to explain why and that.

…………………………………….

Q. Was there any procedure that you uniformly adopted in relation to foreign matter associated with the support of other parts of a structure when you were removing ceiling or wall panels?
A. I've seen nothing to bring my attention to that.

Q. I'm just asking you about your practices at the time you did this job. You told you had, that in relation to the removal of panels, wall panels, you had routine practices to do the job safely?
A. That is correct.

Q. What practices did you have, if any, in relation to foreign matter, if I can put it that way, associated with the part of the structure other than the panels that you were removing; what was your practice?
A. If I found foreign matter, then I would investigate it and find out why, but it, I did not come across anything and it was all coming out in the normal way that we would take something down, then the job to me was still progressing as it should.

Q. But your practice was that if you removed foreign matter which seemed to be associated with supporting another part of the structure, you would investigate what that foreign matter had been doing?
A. Yes.

Q. Before you interfered with it, is that what you say?
A. Yes, that is correct.

Q. Now in relation to the support of the floor, what foreign matter would you anticipate might be encountered in the course of your work?
A. It might be bracing that's connected to the panel.
It could be removing pipe work that could be there, like, for another reason, you know. There's lots of different things to why you would investigate that. But, again,
I didn't see anything like that, so--

Q. So--
A. I wasn't visual - vigilant, is it? Like looking at
it to say yes, this has got something to do with that.

Q. When you say you were not vigilant, do you mean you were not careful, or do you mean you were not put on notice?
A. I didn't see anything to make me say there's something here.

Q. Now I've forgotten the expression - you used the expression "bracing" a moment ago?
A. Yes.

Q. Does that encompass elements that might be used to hold up a floor panel?
A. Yes. Bracing can be used to hold up a lot of different things.

Q. And in the course of your experience in the building industry, have you come across something that might be described as a top hat? Is that something you're familiar with?
A. Yes. I've used thousands of metres of top hat.

Q. And that's a material that's frequently used to support floor structures?
A. Yes. And roofing and side walling and cladding and so many different things.

Q. And it falls within the category of foreign matter in the way you use that expression?
A. Yes, it would.

Q. And was it part of your standard procedures at the time you did this job, if you were removing a ceiling panel and found hop hats on top of it, to investigate
the significance of what you'd removed?
A. Yes, it would be. But I didn't see anything like that.

………………………………………

Q. You're aware of the location of the floor panel through which Mr Baghdadi fell?
A. Yes, I am.

Q. Are you able to say whether or not you were personally involved in removing the ceiling panel from beneath that area of floor?
A. The ceiling would have run under there somewhere, yes.

Q. But are you able to say whether you personally were - I'll ask another question.
A. All right.

Q. Were you present on the site when that ceiling panel was removed, that is the ceiling panel beneath the area?
A. Yes, I would have been.

Q. And you say you would have been. How do you know you would have been?
A. Because I pulled out all the panels that had to be removed from that area and made sure that no foreign matter come with it. And it was just a maze of pipe work up there. You've got to realise what you're looking at.

Q. Okay, let's take it one question at a time. You say you pulled out the pipe work?
A. Not pipe work--

Q. You pulled out the panel work in that area?
A. Yes.

Q. Did you do that with assistance?
A. Yes, I did.

Q. What was your role that you documented in connection with pulling out that panel work?
A. I physically went up there on every movement and took it down.

Q. Is that going up in the scissor lift?
A. Up in a scissor lift. There was a man on the
scissor lift this side (indicated), and I was on this
side (indicated), and we would take the panel out. Then we would bring the panel to the ground. Then the panel would be checked. Right?

If a panel didn't want to move out of the position, because it usually just clicks out, we'd have to ask ourselves: Why? And then we would go up and investigate, and we'd say there's a pipe bracket attached to it. Then we would have to say we have to secure the pipe, you know, we have to do this, we have to do that, before we can remove it.

Q. And that was all just plain standard safety practices as far as you were concerned?
A. Yes.

Q. And something that you say you instructed your labour force in?
A. Most definitely. When you're six metres of off a floor with a panel, you can see everything that's going on, and you can, and you can tell what is going on, and you can communicate with that man, and if he gets something he will say that to you.

HIS HONOUR

Q. I take it that instructions of the kind you've been talking about would have been on the outer side of the ceiling panel from where you were working?
A. Yes. When we took the ceiling down, you realise that you're looking at a maze of pipe work and electric cables and bracing, and there's just so much up there, and you look and it's - if you took this roof down you could see what was in the roof. There's just so much up there to
be looked at, you know.

But when we come back after we pulled the panel out,
and it's all clear, the other services come in and they re-route the services and they put things where they should be and everything goes back together. And then
up we come with the panel and we re-clad it.

DONALDSON

Q. Now you've told us that it's part of basic safety practice to investigate foreign matter, including foreign matter in the nature of top hats, when you're removing ceiling panels, correct?
A. Yes.

Q. And you've said I think that you would investigate further in the event that you discovered something like that?
A. That is correct.

Q. And what would that investigation involve?
A. It would mean I have to go and look at it and make
a decision on what to do.

Q. And top hats were something that you recognised as being frequently used as a purlin, if you like, something to support a floor structure?
A. Yes. If I seen purlin, if I seen top hats hanging down and that, I would say "why" to myself, "why?”

Q. And if it appeared that purlins or top hats had been removed from underneath a floor panel, that would suggest to you that something that had been supporting the floor panel had been removed, wouldn't it?
A. That is correct, and I would then have rectified the problem.

Q. By providing reinforcement?
A. Reinforcement, whatever I had to do to make sure, that is correct.

Q. And that's also part of standard safe practice on
a building site?
A. Yes.

102 Mr Lindner told Mr Donaldson that his alleged conversation with Mr Versi about sealing door 427 and restricting access to the alcove occurred after the ceiling had been removed and he was about to leave the site. He said to Mr Versi, “I would like to show you all the measures I’ve put in around the hole”.

103 Mr Campbell cross-examined Mr Lindner about the position of Special Transformers Pty Ltd:

“Q. When you answered one of those previous questions you mentioned the name Vidual?
A. Yes.

Q. And why did you mention that name?
A. Because Vidual was my company. I worked for Vidual. I operated Vidual as my company and it was me.

Q. Now in that regard Mr Webb showed you some documents with the special transformer's name on it?
A. Yes.

Q. I think you said that you hadn't seen the purchase order in Mr Ham's handwriting of July 2002, is that right? You hadn't seen it before?
A. I hadn't seen it but I have seen it through other people.

Q. You don't remember seeing it at the time I think, is that correct?
A. No.

Q. And you were shown today and you have probably seen on other occasions some invoices that were issued in respect of that work that you performed dismantling or stripping the old laboratory on an invoice that had the name special transformers on it?
A. Yes.

Q. Firstly, do you know how that document came into existence?
A. Me and my wife wanted to bring our company to one GST and one BAS and one of everything instead of running two businesses. We were starting to look to bring my expertise and what she was doing together but I still worked at Vidual, like doing my jobs.

Q. Are you saying this, that it may be that for financial reasons of the type you have just described to us that that invoice was issued in the name of special transformers, is that right?
A. Yes.

Q. But so far as the work you were performing as a subcontractor for Austec was concerned, it was Vidual who performed the work?
A. Yes, it was.

Q. And in that regard are you saying that it was just business as usual between you and Mr Zadro?
A. Yes.

104 Mr Campbell turned to question Mr Lindner upon his evidence as to what other contractors had done while he was away from the job for about 3 weeks following the dismantling. It was put to him that all services were removed before the dismantling commenced. He agreed that the services would have been disconnected but would not agree, as I understand it, that they had been removed.

105 When Mr Campbell returned to the subject of the alcove floor, Mr Lindner said that after the ceiling was removed he could not clearly see the underside of the floor because of “services hanging up there”. He was challenged about this evidence:

“Q. See, when you were standing on the floor after you had demolished your ceiling and you looked up you could clearly see the underside of the alcove floor, couldn't you?
A. But if there was something there I wouldn't have, no, I don't agree with that.

Q. There wasn't anything there, is my point?
A. There is a service running the side of it if you look clearly.

Q. If there is a conduit, that is one conduit, it wouldn't obstruct your view of the whole thing, would it?
A. No, no.

Q. That's right, isn't it?
A. Yes.

Q. Do you remember that when you took the ceiling down that there was a conduit there you had to watch out for?
A. I can't remember.

106 Mr Campbell asked Mr Lindner about top hats visible in photographs of the alcove:

“Q. You can see that those top hats in the subfloor area are clearly visible from the ground floor, aren't they?
A. Yes, I can.

Q. Those top hats there must have been visible to you from the time that you took down the ceiling and the wall; that's right, isn't it?
A. Yeah, I would have seen them, yes.

Q. Do you remember seeing them?
A. Yes.

Q. Did you see any other top hats when you looked up from the ground floor after you'd taken away the ceiling and the wall?
A. No.

Q. Is it true that all you could see if you looked up from beneath the alcove flooring was the underside of the fibre cement sheet that subsequently fell?

“85

Fazlic v Milingimbi Community Inc

State of New South Wales v Fahy

Assessment of Damages for Personal Injury and Death

at [4.2.1]

Sharman v Evans

582 In my opinion, the quoted observations of Basten JA (with whom Giles JA and Santow JA agreed) if not binding upon me, are extremely persuasive, notwithstanding their omission from the authorised report of the case. I will attempt to approach the matter in the light of what His Honour said.

583 There seems no dispute that Kaybron has actually paid $5,857,913.33 as a consequence of Omar’s accident, purportedly pursuant to its obligations under the WCA. Of that sum it accepts that $396,477 is not recoverable from the defendants to its action for the reasons that the sum represents the costs of legal investigation, or the invoices are missing, or the payments are of a personal nature. The sum of $396,477 includes the sum of $349,059.85, referred to earlier.

584 Kaybron, accordingly, claims $5, 461,435 plus interest in its action.

585 In respect of the sum claimed by Kaybron, $250,000 represents lump sum compensation under sections 66 and 67, and $93,275 represents weekly compensation. There can be no argument as to Kaybron’s entitlement to indemnity in respect of those amounts.

586 In relation to the balance of the claim, a number of components were disputed, which I will deal with seriatim.

Nursing Care: The total claimed is $3,617,789.40. The defendants submitted that, according to Ms Oates, appropriate care could have been provided for no more than $1,509,323 and according to Ms Merram for no more than $1,762,501. As a consequence, it was submitted that reasonable necessity did not require expenditure to the level claimed.

Mr Parker countered this submission by pointing out that both Ms Oates and Ms Merram were giving evidence about future care rather than past care. In my opinion this issue should be resolved in favour of Kaybron in the manner suggested by Basten JA in State Rail Authority v Brown. The care was provided by Omar’s employer or his insurer and it was endorsed by very experienced practitioners who gave evidence in the case. To disallow or reduce it would, in my opinion, be tantamount to a finding that the level of care provided was unreasonable. This I am unwilling to do. I would allow the sum claimed.

Rehabilitation: The sum claimed was $277,483.84. Mr Campbell’s submission was that, in truth, it represents case management, which does not fall within section 59 of the WCA. The definition of occupational rehabilitation service contained in that section is very wide and could in my view encompass what may be regarded as case management. It was not disputed that the sum was paid by Kaybron for Omar’s benefit. Given the nature of his incapacity and the length of time which has passed since the accident, I am unable to find that the expense was either unreasonable or outside section 59. Accordingly, I allow it.

Speech Pathology: It was submitted that there was a very considerable degree of over servicing in respect of the sum claimed for speech pathology provided by Ms Margie Logan. Perhaps there was some over servicing, with the benefit of hindsight, and perhaps, as submitted, any attainable goals have already been reached. On the other hand, it is not disputed that the sum claimed was paid to Ms Logan. Moreover, there was considerable medical evidence, including from Dr Lowy, as to its beneficial therapeutic value. Again, in the circumstances, I am unable to find that the past expenditure was unreasonable and I would allow the amount claimed.

Bed Linen: $15,833 was claimed which included 98 towels, face washers etc and 56 hospital gowns. I agree that it is difficult to regard this as reasonable expenditure and it is also difficult to bring the expenditure wholly within section 59, except as surgical supplies. I would reduce the sum claimed by $10,000 to $5,833..

Chair Stool: I agree with the submission that this item costed at $328 does not fall within section 58.

Dr Lowy: I agree with the submission that Dr Lowy was not a treating doctor but rather a “go between”, an advocate for Omar. He admitted in evidence that he became involved at the request of Omar’s solicitor and although he has been closely involved in his care and treatment, it does not appear that he himself treated Omar. I would disallow the sum of $16,240 claimed.

Podiatry: Although it was submitted that this service i.e. the cutting of toenails could have been provided by carers, the fact is that it was not, and there was evidence that this is not part of the carer’s responsibilities I would allow the claim of $2,610.

Wheelchair: The sum of $25,159.40 was claimed in respect of a second wheelchair. I agree that no reasonable justification for a second wheel chair was established and I would disallow the claim.

Taxis: $32,056 was claimed in respect of taxi fares for the period before a vehicle was acquired and modified for Omar, which seems to have occurred about September 2005. However, invoices totalling only $11,706 were presented. Moreover, on their face most of the invoices seem unrelated to a transportation referred to in section 59. I would allow $5,000 in respect of the sum claimed for taxis.

587 In the result, I reduce the amount of Kaybron’s claim by $ 89,811.86 to $5, 371,624.05. In accordance with my earlier finding, it is entitled to a verdict for 90% of that sum, namely $4,834,461 against all three defendants who between themselves should share the liability equally.

588 Kaybron is also entitled to some interest upon the amount recoverable by it. Mr Campbell, however, referred to what Basten JA said in Teuma & Anor v C P and P Kaybron Judd Pty Ltd [2007] NSWCA 166. That was a case where an employer sought indemnity under section 151 Z (1)(d) and the trial judge allowed interest at 6%, describing it as “the current ten year bond rate”. It appeared that the judge, because of delay in bringing proceedings, intended to order interest at a lower rate than otherwise. At paragraph 111 and following, Basten JA said:

“[111]

[112] In my view these factors, which favour a grant of interest, should have been discounted in the present case because of the nature of the debt. The debt arose by way of statutory indemnity in circumstances where there was no prior relationship between the parties, as there would be in the usual case of a contractual or other commercial arrangement. So far as the evidence reveals, the defendant knew nothing about the claim for indemnity until served with proceedings on or about 27 October 2005, some eight years after the accident occurred. Thus, if the plaintiff was kept out of its money, it was because it never asked for it. Similarly, if the defendant had the use of it, it was in circumstances where it did not know of the claim and did not have a reasonable opportunity to provide for its contingent liability. In relation to inflation, some allowance must be made for the fact that by obtaining a late assessment of the damages suffered by the worker, the employer had the benefit of a built-in allowance for inflation in the amount of the cap on its liability.

[113]

589 In this case, the Statement of Claim in the later action was not filed until 3 August 2007 and P & M was not joined until 26 October 2007.

590 During the relevant period i.e. since August 2002, the interest rate prescribed for the purposes of section 101 of the Civil Procedure Act has fluctuated between 9% and 10%. That rate would ordinarily be allowed but in this case, having regard to Kaybron’s delay in bringing action and for the reasons identified by Basten JA, I think it would be unjust to order interest at such a high rate. It would, I think be appropriate to allow interest on the sums recoverable under the indemnity at 5% per annum. For convenience, I will make the calculation from 7 August 2002 to the date of this judgment, a period of 5 years and 251 days and halve the result. The calculation produces $687,421.

SUMMARY OF OMAR’S DAMAGES:

591 My conclusions in respect of Kaybron’s claim lead to the provisional quantification of Omar’s allowable out of pocket expenses. They comprise the amount referred to in paragraph 556 viz $196,721, together with the sum of $4,834,461 referred to in paragraph 587, less the total of the compensation referred to in paragraph 585, namely $343,275. On that basis I will, provisionally, allow Omar $4,491,186 by way of out of pocket expenses.

592 In summary, therefore, I provisionally calculate Omar’s damages (subject to the impact of section 151 Z) as follows:

Future Attendant Care $8,000,000

THE OPERATION OF SECTION 151 Z OF THE WCA

593 Section 151 Z (2) applies to this case in that as I have held Omar was entitled to take proceedings independently of the WCA against Kaybron. For the purposes of the adjustment which the subsection requires, I assess damages against Kaybron in accordance with section 151 G of the WCA as follows:

$ 4,000

594 Omar would have been entitled to a verdict against Kaybron if he had taken proceedings against it for $ 900,278.

595 By virtue of section 151 Z (2)(c), the damages provisionally assessed in favour of Omar against P & M, Austec and Vidual namely, $15,958,600 are to be reduced by the amount by which the contribution which those defendants would, but for Part 5 of the WCA, be entitled to recover from Kaybron, namely $1,595,860, exceeds the amount actually recoverable, namely $90,027. The difference between those two sums is $1,505,833 and, accordingly, Omar’s entitlement to a verdict against P & M, Austec and Vidual is reduced to $14,452,767.

596 I would not regard a verdict of either $15,958,600 or $14,452,767 as strikingly disproportionate to the nature of Omar’s claim. It would broadly accord with the verdict of $14,202,042 found by Whealy J in Diamond v Simpson albeit for specific reasons it was reduced on appeal to $10,998,692. The plaintiff in Diamond v Simpson seemed to need less care than Omar and had a longer life expectancy.

ASSESSMENT OF DAMAGES – MR KOURI:

597 Mr Kouri’s action is also governed by the Civil Liability Act (the CLA). As father of Omar he constitutes “a close member of the family” within section 30.

598 In my opinion, within section 32 (1) of the CLA, each of the three defendants ought to have foreseen that a person of normal fortitude might, in the circumstances, suffer a recognised psychiatric illness if reasonable care were not taken. The defendant therefore owed a duty, not only to Omar but also to his parents, a duty which they breached. There was no contributory negligence by Omar.

599 I am satisfied on the evidence to which I have referred that Mr Kouri, resulting from the defendants’ negligence, suffers a recognised psychiatric illness, namely an adjustment disorder with depressed mood which has become chronic and pervasive, as diagnosed by Dr Phillips, post traumatic stress disorder with poor prognosis as diagnosed by Dr Robertson, or post traumatic stress disorder and consequent depression as diagnosed by Dr Clarke. None of those doctors was required for cross-examination and no contrary medical evidence was tendered by any of the defendants.

600 I accept Dr Phillip’s evidence that Mr Kouri suffered psychological shock in several parts over a period of time and I accept Mr Kouri’s evidence as to his feelings initially, and as time has passed, in relation to his son.

601 The accident had a major impact upon Mr Kouri’s life, he commenced to drink alcohol to excess; he seemingly lost interest in his employment; he became socially withdrawn; and, as it appears, has devoted himself almost to the point of obsession with Omar’s welfare. At one point he was suicidal. He required and still requires medication.

602 Mr Kouri’s entitlement to damages for non economic loss is governed by section 16 of the CLA. Mr Hull submitted that he should be regarded as 60% of a most extreme case for the purposes of the section. The defendants, whilst conceding that Mr Kouri “falls into the class of person entitled to compensation for “mental harm””, submitted that the appropriate range was between 27% and 29% of a most extreme case.

603 Counsel pointed to references in the medical evidence to the possibility of improvement in Mr Kouri’s condition following further psychotherapy and to Dr Philip’s inability positively to validate a diagnosis of post traumatic stress disorder.

604 It is by no means easy to make comparisons between mental harm suffered by plaintiff’s such as Mr Kouri and what normally comes to mind when considering “a most extreme case” ;namely such events as quadriplegia, serious brain damage and extremely severe scarring and disfigurement Kurrie v Azouri (1998) 28 MVR 406 per Sheppard AJA. Of course Omar himself presents as a tragic example.

605 Mr Kouri remains physically intact. His cognitive capacity is unimpaired and he has apparently been able to overcome his alcohol problem. Whilst handicapped by mental disorder, he is able otherwise to lead a normal life, or would be if not restricted by his personal, albeit perfectly understandable, choice to devote such a large proportion of his time and energies to the care of Omar.

606 In all the circumstances, I think 60% of a most extreme case is much too high. I would fix the percentage at 35% resulting in an award for non economic loss of $ 154,700.

607 Past out of pocket expenses were agreed at $5,240. Future out of pocket expenses were claimed at $35,226, largely based on the recommendations for future medication and treatment by Dr Phillips and Dr Clarke.

608 Counsel conceded the need for Mr Kouri to have counselling as recommended by Dr Phillips at a cost of $3,000. It was submitted that I would not accept Dr Clarke’s opinion that he needs counselling for the rest of his life.

609 I agree that it is unlikely that Mr Kouri will, in fact, seek regular counselling for the rest of his life. I would allow $10,000 altogether for future out of pocket expenses.

610 In relation to economic loss, it was submitted on behalf of Mr Kouri that he has lost income since Omar’s accident, casually connected to the defendants’ tort.

611 At the time of the accident, he remained in employment with A W Tod on light duties following a shoulder injury some time previously. That employment was terminated in November 2005 when Mr Kouri was made redundant following a letter to him in the following terms (omitting formal parts):

“RE: Position at A W Tod Stair & Joinery

You have worked with A W Tod Stairs as a stair builder since November 1998. Until 2 years ago your standards of workmanship and reliability were very good and you were recognized as the leading tradesman. Your knowledge and trade skills were a valuable asset to this company.

However, recently your regularity of attendance and quality of work have become unacceptable. Your concentration levels have been noticeably declining as is you inability to work a full day or a 5 day week.

Since May1 you have been only able to work a 3 day week. From the 27th October you have been unable to work at all.

We are experiencing problems with clients as we are unable to rely on you and are forced to send other tradesmen to finish your jobs. This situation is unacceptable and we are no longer able to use your services as a staircase contractor.”

612 Mr Hull conceded that no claim for lost income was appropriate up to November 2005. Loss of income since then is claimed except for the period Mr Kouri worked for Global as a carer for Omar.

613 The defendants submitted that in truth Mr Kouri was made redundant because of his choice to spend about 12 hours per day assisting the professional carers to look after Omar. While I doubt the evidence supports the contention that Mr Kouri was actually spending 12 hours a day with Omar before he was made redundant, I am satisfied that his attention to Omar caused him to neglect his employment and led to its termination.

614 However, in the period between October 2005 and June 2006 when he became employed by Global, he did, according to his evidence given to Mr Webb devote 12 hours per day to Omar:

“Q. And in that period between October 2005 and June 2006, you were spending all your available time with your son, weren't you?
A. Yes.

Q. You were helping him in many, many different ways?
A. I was his chauffeur; I was working with him 12 hours a day; doing the grocery, cooking. Probably that year his mother was there for two to three months, whatever it is, I don't know the time or date, but, yes, all the work. I used to get up every morning at 6.30, whether I am working with him or not. I used to work with him two or - two days at the most. I couldn't work any more than that, because it's very demanding work.

Q. I am just trying to ask you questions about the period before you started working for Global Advantage?
A. Yes.

Q. Do you understand that?
A. Yes.

Q. So when I ask you questions, just keep in mind that's the period that I am referring to?
A. Okay.

Q. In that period, you weren't working any longer; correct? You weren't working for Tod anymore?
A. No. No.

Q. So all of your energies were going into helping your son; is that right?
A. Correct.

615 Mr Kouri worked for Global for about 12 months performing what was undoubtedly, to a significant degree, quite hard physical work. He resigned because in essence the work became too much for him physically and mentally “Not just my back, my whole physical was shot, including my back’.

616 It was submitted that Mr Kouri left Global’s employment because of the injury to his back and physical demands of the work rather than any mental disability.

617 There seems to be a degree of conflict between Dr Phillips opinion as to Mr Kouri’s work capacity and that of Dr Clarke, although Dr Clarke’s views are more recent and should be respected as those of his treating doctor. On the other hand, Mr Kouri, a man with what I would regard as a strong work ethic did not in his evidence reject the possibility of a return to the work force. I do not accept Dr Clarke’s opinion that Mr Kouri is wholly incapable of engaging in employment. Apart from anything else, in my view, the competence and dedication with which he has appeared to supervise Omar’s care seems to demonstrate a considerable degree of organisational capacity and tenacity.

618 The defendants submitted that no allowance should be made either for the past or the future in respect of diminished earning capacity. However, I think that a global sum should be awarded as a buffer or cushion to meet the situation that when Mr Kouri is minded to seek employment on the open market, he may, with his mental disorder, find it more difficult than someone without that disorder to secure a suitable position. I would allow in all $50,000 for diminished earning capacity.

619 In the result, therefore I would award Mr Kouri $219,940 made up as follows:

$ 50,000

ASSESSMENT OF DAMAGES – MRS COHEN:

620 It seems clear that Mrs Cohen has established an entitlement to damages for mental harm similar to that of her former husband. Her claim for non economic loss must be approached on the same basis as Mr Kouri’s claim. It was submitted on her behalf that she too should be regarded as 60% of a most extreme case.

621 Again the defendants contended that when compared to what comes to mind when contemplating “a most extreme case”, she should receive damages which represent only a modest percentage.

622 Although, of course, as between themselves, the claims of Mr Kouri and Mrs Cohen are not entirely comparable, I think they are sufficiently so to warrant being awarded the same percentage of “a most extreme case”.

623 Accordingly, it being conceded by the defendants that Mrs Cohen brings herself within the relevant provisions of the CLA, I would award her $154,700 damages for non economic loss.

624 Out of pocket expenses were agreed at $4,925.40 and that sum should be allowed.

625 Mrs Cohen seeks a substantial sum as compensation for past lost earnings. Earlier, I have indicated that she lost her permanent employment at the end of 2003. She has, according to her tax records earned very little income since.

626 On behalf of the defendants, it was submitted that her economic loss has arisen, according to the evidence, not because of mental illness affecting her capacity to earn income, but rather because of her frequent absences, understandable as they have been, in visiting Omar in Australia. In the defendants’ submission no allowance should be made for past loss of income as the evidence does not support such an allowance.

627 On the other hand, Mr Hull pointed out, in effect, that directly and by inference, Dr Phillips provides support for a claim of diminished earning capacity.

628 There is, I think, no doubt that Mrs Cohen has been, and is, a woman agonisingly torn between her feelings of love and responsibility to her husband, family, and employment in America, and those she feels towards Omar in Australia. It is impossible not to have great sympathy for her but, as it seems to me, the conflict does not necessarily mean that her capacity to earn income has been diminished in a way recognised as compensable, either at common law or, so far as the future is concerned, in accordance with the somewhat stricter regime provided for by section 13 of the CLA.

629 In relation to her past income loss, I am satisfied that there has been some diminution of her earning capacity due to mental illness. It is impossible to separate that diminution from the barrier to her continuation in permanent employment presented by her personal decision to make frequent trips to Australia which, indeed, as Mr Hull submitted, may have operated to minimise her general damages.

630 For the purposes of section 13 of the CLA, given Mrs Cohen’s past employment, it is likely, in my view, that she will return to the workforce but, as has been the case since the accident, her capacity to earn income will be diminished, both by her non compensable wish to spend as much time as possible with Omar and her compensable mental illness.

631 In the above circumstances, it is appropriate, as with Mr Kouri, to award a lump sum by way of buffer or cushion, which I fix at $75,000 to cover both the past and the future. The question of interest upon that sum does not arise.

632 It seems probable that Mrs Cohen will continue to live in the USA and will continue to have counselling. On the basis that such counselling will be for the rest of her life the “gap” sum of $16,837.78 is sought, namely the difference between cost and insurance entitlement. Although the sum claimed is relatively modest, there should be some discount to meet the circumstance that she will not continue the counselling for life. I would allow $13,000.

633 In summary, therefore, I would award Mrs Cohen $247,625 calculated as follows:

$ 13,000

ORDERS AND DECLARATIONS:

634 In the light of the above findings, I recognise that there are likely to be matters upon which the parties will seek to make further submissions and possibly call evidence. Those matters will, at least, relate to the management of Omar’s verdict. There may also be matters of arithmetical calculation and costs. Accordingly, I defer making formal orders and stand the matter over for mention tomorrow 8 May at 9.30am. At that time I would hope to make such orders as can be made without further debate and to give directions regarding outstanding matters.

635 Subject to any further argument, it seems to me that in accordance with my reasons and finding there should be:

A. In action 20105 of 2005.

4. Order that the defendants pay the plaintiff’s costs.

5. Declaration that as between themselves the defendants are liable to contribute equally to the verdicts and costs.

B. In action 13906 of 2007

8. Order the defendants pay the plaintiff’s costs.

9. Declaration as between themselves that the defendants are liable to contribute equally to the verdict and costs.

NOTE

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Citations

Omar Baghdadi by his tutor Sami Kouri v P & M Quality Smallgoods Pty Limited; and Kaybron (No5) Pty Ltd v Vidual Pty Ltd [2008] NSWSC 406

Most Recent Citation

Luke as tutor for Luke v Workers Compensation Nominal Insurer [2010] NSWDC 18

Cases Citing This Decision

2

Workers Compensation Nominal Insurer v Gary Luke by his Tutor Matthew Charles Luke [2011] NSWCA 251

Luke as tutor for Luke v Workers Compensation Nominal Insurer [2010] NSWDC 18

Cases Cited

21

Statutory Material Cited

6

Teuma v CP & PK Judd Pty Ltd [2007] NSWCA 166

Atkinson v Gameco (NSW) Pty Ltd [2005] NSWCA 338

Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7

CITATION:	Omar Baghdadi by his tutor Sami Kouri & Ors v P & M Quality Smallgoods Pty Limited; Austec Panel Systems Australia Pty Limited; Vidual Pty Limited; Kaybron (No5); and Kaybron (No5) Pty Ltd v Vidual Pty Ltd; Austec Panel Systems Australia Pty Ltd; P & M Quality Smallgoods Pty Ltd [2008] NSWSC 406
HEARING DATE(S):	24,25,26,27,28 September 2007 2,3,4,5,8,9,10,11,12,15,16,17,26 October 2007 26,27,28,29,30 November 2007 3,4,5,6,10,11,12,13,14 December 2007 31 January 2008 6,7,8,11,12,13,19 February 2008
JUDGMENT DATE :	7 May 2008
JUDGMENT OF:	Patten AJ at 1
DECISION:	See paragraph 635
LEGISLATION CITED:	Civil Liability Act 2002 Civil Procedure Act 2005 Law Reform (Miscellaneous Provisions) Act 1946. Occupational Health and Safety Regulation 2001 Occupational Health and Safety Act 2000. Workers Compensation Act 1987
CASES CITED:	Atkinson v Gameco (NSW) Pty Ltd [2005] NSWCA 338 Australian Safeway Stores Pty Ltd v Zaluzna (1987) 61 ALJR 180 Blundell v Musgrave (1956-7) 96 CLR 73 Diamond v Simpson [2003] NSWCA 67 Florida Hotels Pty Ltd v Mayo (1965) 113 CLR 588 Fox v Wood 55 ALJR 562 G T Pettersen v Bacha (1995) 21 MVR 71. Hackshaw v Shaw (1984) 155 CLR 614: I & J Foods Pty Ltd v Bergzam Pty Ltd (1997) 14 NSWCCR 486 James Hardie & Co Pty Ltd v Roberts & Anor [1999] NSWCA 314 Kurrie v Azouri (1998) 28 MVR 406 Manning v State of NSW [2005] NSWSC 958 Mutton Bros v Howard Haulage Pty Ltd [2007] NSWCA 340 Nicholson v Nicholson (1994) 35 NSWLR 308 Olsson v Dyson (1969) 43 ALJR 77. Oxley County Council v MacDonald [1999] NSWCA 126. Roberts v Johnstone & Anor [1998] 3WLR 1247 Rosecrance v Rosecrance (1995) 105 NTR 1. Sharman v Evans (1976-7) 138 CLR 563 State Rail Authority of NSW v Brown [2006] NSWCA 220 Skelton v Collins (1965-66) 39 ALJR 480 Teuma & Anor v C P and P Kaybron Judd Pty Ltd [2007] NSWCA 166 Tolhurst v Associate Portland Cement Manufacturers (1900) Ltd [1902] 2 KB 660 Weideck v Williams [1999] NSWCA 346 Wilson v McLeahy (1961-62) 35 ALJR 256.
PARTIES:	Omar Baghdadi by his tutor Sami Kouri - First Plaintiff; Sami Kouri - Second Plaintiff Judith Cohen - Third Plaintiff P & M Quality Smallgoods Pty Ltd - First Defendant Austec Panel Systems Australia Pty Ltd - Second Defendant Vidual Pty Ltd (in Liquidation) - Third Defendant Kaybron (No5) Pty Ltd - Cross Defendant and Kaybron (No5) Pty Ltd - Plaintiff Vidual Pty Ltd (in Liquidation) - First Defendant Austec Panel Systems Australia Pty Ltd - Second Defendant P & M Quality Smallgoods Pty Ltd - Third Defendant
FILE NUMBER(S):	SC 20105 of 2005; 13906 of 2007
COUNSEL:	Mr B Hull with Ms J Lonergan - Plaintiffs (action 20105 of 2005) Mr S Campbell SC with Mr P Perry - P & M Quality Smallgoods Pty Ltd Mr S Donaldson with Mr D O'Dowd - Austec Panel Systems Australia Pty Ltd Mr P Webb QC with Mr G Hickey - Vidual Pty Ltd Mr C Parker with Mr P Khandhar - Kaybron (No 5) Pty Ltd
SOLICITORS:	George Mallos Lawyer - Plaintiffs (action 20105 of 2005) Home Wilkinson Lowry Lawyers - P & M Quality Smallgoods Pty Ltd James Tuite & Associates - Austec Panel Systems Australia Pty Ltd Moroney Lawyers - Vidual Pty Ltd Turks Legal - Kaybron (No 5) Pty Ltd