Oroz v Hansen Yuncken Pty Ltd

[2004] NSWSC 1288

CITATION:	Oroz v Hansen Yuncken Pty Ltd & Anor [2004] NSWSC 1288
HEARING DATE(S):	9 - 13 February 2004, 16 - 19 February 2004, 11 June 2004
JUDGMENT DATE:	1 October 2004
JUDGMENT OF:	Simpson J
DECISION:	verdict and judgment against each defendant; damages for personal injury; defendants to bear equal responsibility; contributory negligence not established
CATCHWORDS:	damages for personal injury - negligence - breaches of statutory duty - quantification of damages - whether the 1st defendant owed the plaitniff a duty pursuant to statute in addition to common law duty - whether breaches of statutory duty are established - proportionate liability of defendants - contributory negligence
LEGISLATION CITED:	Construction Safety Act 1912, s3, Construction Safety Act Regulations reg 73, reg 74 Law Reform (Miscellaneous Provisions) Act 1946, (NSW) S5 Scaffolding and Lifts Act 1912 Workers Compensation Act 1987, (NSW) s151Z
CASES CITED:	Buckman (H.C.) & Son Pty Ltd v Flanagan; Shaw v Flanagan [1974] HCA 30; 133 CLR 422 Fox v Wood [1981] HCA 41; 148 CLR 438 Griffiths v Kerkemeyer [1977] HCA 45; 139 CLR 161 Jones v Dunkel [1959] HCA 8; 101 CLR 298 Maggiotto Building Concepts Pty Ltd v Gordon [2001] NSWCA 65, unreported, 30 March 2001 Malec v J C Hutton Pty Ltd [1990] HCA 20; 169 CLR 638 Matchan v Lyons [2003] NSWCA 384, unreported, 22 December 2003 Mortimer v Burgess NSWCA, unreported, 16 June 1997 Smith v Rex Building Co Pty Ltd [1962] NSWR 1057; 63 SR(NSW) 32 Storozuk v Commissioner for Railways [1963] SR(NSW) 581
PARTIES :	Ilija Oroz - Plaintiff Hansen Yuncken Pty Ltd - 1st Defendant Auburn United Formwork Pty Ltd - 2nd Defendant
FILE NUMBER(S):	SC 20905/01
COUNSEL:	D Kennedy SC with F Fletcher - Plaintiff J de Greenlaw - 1st Defendant H G Shore SC - 2nd Defendant
SOLICITORS:	Taylor & Scott - Plaintiff McCulloch & Buggy - 1st Defendant Bartier Perry - 2nd Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

SIMPSON J

1 October 2004

20905/01 Ilija Oroz v Hansen Yuncken Pty Ltd & Anor

JUDGMENT

1 HER HONOUR: The plaintiff brings these proceedings against each of the two named defendants, claiming damages for personal injury sustained by him on 25 November 1999, whilst in the employ of the second defendant and working on a building site occupied and controlled by the first defendant.

2 Without making any formal admission of liability, each defendant, through its legal representatives, acknowledged that it owed the plaintiff a duty to take reasonable care for his safety, that it failed to discharge that duty, and that its failure was a material cause of the plaintiff’s injury. The evidence clearly establishes that, in each case, the acknowledgement was realistic and correct. The consequence is that there must be an award of damages in favour of the plaintiff against each defendant. An allegation of contributory negligence pleaded on behalf of the second defendant was not pursued; a similar allegation made on behalf of the first defendant was. Besides alleging negligence on the part of each defendant, the plaintiff has alleged that each was in breach of certain statutory duties which it owed to him, and that these breaches, too, were a material cause of his injury. The first defendant denied that it owed any duty to the plaintiff by statute, (but accepted that, if it did, it was, in one respect, in breach of that duty); the second defendant accepted that it owed such a duty to the plaintiff, but denied any breach.

3 Each defendant has served a cross-claim on the other, claiming, pursuant to s5 of Law Reform (Miscellaneous Provisions) Act 1946, contribution or indemnity in respect of its liability.

4 A number of issues therefore arise for determination.

5 These include the quantification of the damages to which the plaintiff is entitled against each defendant as a result of its established negligence; whether the plaintiff has established that the first defendant owed him any duty pursuant to statute in addition to the common law duty it admittedly owed him; if so, whether the plaintiff has established any breach of any of those statutory duties; whether the plaintiff has established that the second defendant was in breach of its admitted statutory duty to him; the proportionate liability of each defendant; whether or not the first defendant has established that the plaintiff bore any responsibility, and, if so, to what extent, for his own injury.

6 Quantification of damages is complicated by the provisions of the Workers Compensation Act 1987 (“the Act”), s151Z of which is in the following terms:

“151Z. Recovery against both employer and stranger

(1) If the injury for which compensation is payable under this Act was caused under circumstances creating a liability in some person other than the worker's employer to pay damages in respect of the injury, the following provisions have effect:
(a) the worker may take proceedings both against that person to recover damages and against any person liable to pay compensation under this Act for payment of that compensation, but is not entitled to retain both damages and compensation,
(b) if the worker recovers firstly compensation and secondly those damages, the worker is liable to repay out of those damages the amount of compensation, which a person has paid in respect of the worker's injury under this Act, and the worker is not entitled to any further compensation,
(c) if the worker firstly recovers those damages the worker is not entitled to recover compensation under this Act,
(d) if the worker has recovered compensation under this Act, the person by whom the compensation was paid is entitled to be indemnified by the person so liable to pay those damages (being an indemnity limited to the amount of those damages),
(e) if any payment is made under the indemnity and, at the time of the payment, the worker has not obtained judgment for damages against the person paying under the indemnity, the payment is, to the extent of its amount, a defence to proceedings by the worker against that person for damages,
(e1) if any payment is made under the indemnity and, at the time of the payment, the worker has obtained judgment for damages against the person paying under the indemnity (but judgment has not been satisfied), the payment, to the extent of its amount, satisfies the judgment,
(f) all questions relating to matters arising under this section are, in default of agreement, to be settled by action or, with the consent of the parties, by the Commission.

(2) If, in respect of an injury to a worker for which compensation is payable under this Act:
(a) the worker takes or is entitled to take proceedings independently of this Act to recover damages from a person other than the worker's employer, and
(b) the worker also takes or is entitled to take proceedings independently of this Act to recover damages from that employer,
the following provisions have effect:
(c) the damages that may be recovered from the person by the worker in proceedings referred to in paragraph (a) are to be reduced by the amount by which the contribution which the person would (but for this Part) be entitled to recover from the employer as a joint tortfeasor or otherwise exceeds the amount of the contribution recoverable,
(d) the amount of the contribution that the person is entitled to recover from the employer as a joint tortfeasor or otherwise is to be determined as if the whole of the damages were assessed in accordance with provisions of Division 3 as to the award of damages,
(e) if the worker does not take proceedings against that employer or does not accept satisfaction of the judgment against that employer, subsection (1) applies as if the worker had not been entitled to recover damages from that employer, except that:
(i) if the compensation paid by that employer exceeds the amount of the contribution that could be recovered from that employer as a joint tortfeasor or otherwise---the indemnity referred to in subsection (1) (d) is for the amount of the excess only, and
(ii) if the compensation paid by that employer does not exceed the amount of that contribution---subsection (1) (d) does not apply and the employer has, to the extent of the compensation so paid, a defence to an action for such a contribution.

(3) This section applies to proceedings taken independently of this Act by a person to whom compensation is payable under this Act in respect of the death of a worker as a result of an injury.

(4) If a worker is liable under subsection (1) (b) to repay any money out of damages recovered by the worker, the worker is not liable to repay the money out of any damages payable after the date of recovery by way of periodic or other payments for loss of future earnings or earning capacity or for future expenses.

(5) For the avoidance of doubt, this section applies and is taken always to have applied to the recovery of compensation or damages, whether or not the compensation or damages were paid under an award or judgment. For example, compensation or damages may be paid under an agreement.”

7 Damages to be awarded against the first defendant are, in the first instance, to be assessed by reference to common law principles. Section 151Z then requires an adjustment to be made. Damages to be awarded against the second defendant, the plaintiff’s employer, are governed by the statutory regime contained in the Act, which imposes substantial limitations upon such an award of damages.

8 Notwithstanding the tacit concessions made by both defendants as to their common law liability, because of the terms of s151Z of the Act, and the cross-claims, it is necessary to consider in some detail the circumstances in which the plaintiff was injured, and to evaluate the respective roles and liability of the two defendants.

factual background: the circumstances of the plaintiff’s injury

In November 1999, the plaintiff, then aged thirty-six, was employed as a formwork carpenter by the second defendant, which carried on business as a formwork construction company. The first defendant was a building company engaged in the reconstruction of a swimming pool complex at North Sydney. The second defendant was sub-contracted to provide formwork services on the site. The plaintiff had been employed on the swimming pool site since June of that year. Part of the work involved demolition (or partial demolition) and reconstruction of an existing grandstand. The back wall of the grandstand had been demolished, leaving a brick structure about five metres high, with what appears from photographic evidence (exhibit A) to be a rough concrete surface. One photograph (exhibit A5) clearly shows the partly constructed (or partly deconstructed) grandstand. At the top of the grandstand is a flat surface or platform, sometimes referred to in the evidence as the concourse. The removal of the back wall, and the result of its removal, can be seen in a photographic annexure to exhibit V.

9 The stepped area of the grandstand can be seen in some of the photographs that constitute exhibit A. Reference was also made in the evidence to a mezzanine level, but I am unclear as to what part of the structure this was, unless it was another way of referring to the concourse. Running parallel with the grandstand, at a distance of about 4.4 metres, and of about the same height, was another wall, constructed of concrete and timber. This was to become an “Air Handling Unit Plant Room”. The timber appears to have been formwork. Between the two structures was a void, about five metres in depth.

10 A steel wire or mesh fence ran along the inner edge of the top of the grandstand, that is, on the side most distant from the void and the formwork, and nearest to the steps of the grandstand. It must have been intended to substitute for the removed brick wall, and to prevent access to the concourse from the steps of the grandstand. Indeed, exhibit A5 tends to suggest that the fence stood on the top step of the grandstand, that is, one level below the concourse. There was no fencing along the edge of the grandstand adjacent to the void. It seems that a gate, which was ordinarily padlocked, had been incorporated into the wire fence. An employee of the first defendant retained the key to the padlock. This, presumably, was designed to prevent unauthorised access from the steps to the concourse and the unfenced side of the grandstand surface. A notice had been placed upon the fence, alerting would-be entrants to the danger of the unfenced area, and the need to wear safety harnesses when working in that area. The notice faced towards the steps of the grandstand, cautioning against entrance from that direction (which was, in any event, precluded by the fence itself and the locked gate).

11 Whatever safety measures had been intended by those responsible for the erection of the wire fence were defeated by two things.

12 On the concourse was located a power board which supplied electricity for the various trades on the site. The steel mesh fence obstructed access to the power board from the grandstand steps. Access to the power board was gained by the use of a makeshift timber bridge which ran from the partially built concrete wall to the grandstand concourse, straddling the void. The bridge had been erected at the direction Mr Roger Day, the foreman employed by the second defendant on the site. It, too, can clearly be seen in the photographs that make up exhibit A. Besides having what appears to be a timber base or plank, it appears to have roughly constructed timber hand rails, attached to four timber upright beams, one at each corner of the plank. Thus, workers on the site who needed to use the power board were able to do so by somehow (the evidence does not disclose how) climbing to the top of the concrete wall and crossing the void by using the makeshift bridge. The structure can most clearly be seen in exhibit A5. The photograph also seems to show a piece of tape across the two upright beams on the formwork wall side of the “bridge”. This may have been intended as a signal not to use the bridge. If so it was ineffectual. The evidence, in fact, suggests that this tape was not present at the time of the plaintiff’s injury. It may have been placed there as a response to his injury.

13 Also straddling the void, and running from the concrete wall to the grandstand surface, were a number of timber beams. These had been placed in position at an earlier time by the plaintiff and his work partner, Mr Ante Stipic. They had nailed the timber beams, or braces, to the timber formwork on the concrete wall, and held them in place on the grandstand by nailing them to pieces of plywood, which in turn they nailed into the concrete surface of the grandstand. The purpose of the bracing was, it seems, to hold the formwork in place while the concrete of which the wall was constructed cured.

14 On the afternoon of 25 November 1999 the plaintiff and Mr Stipic were in the process of removing the braces. Mr Stipic was working from the concrete wall, and was removing the nails that fixed the timber braces to the formwork. The plaintiff walked across the timber bridge to the grandstand, with (according to Mr Stipic – the plaintiff himself has no recollection of anything on the day of the accident) the intention of disconnecting a power lead from the power box. As he stood on top of the grandstand near the power box, adjacent to one of the beams, Mr Stipic completed releasing its opposite end from the formwork. That end of the beam slipped from his hand and fell to the ground. This caused the other end of the beam to jerk upwards. Although there are no known direct witnesses to what then occurred, it seems clear that the beam struck the plaintiff and catapulted him from the grandstand surface into the void and to the ground five metres below. He suffered severe injuries, which will be detailed below.

15 The foregoing is only a short account of the circumstances of the accident. Given the dispute between the defendants, it will be necessary to consider a good deal more of the evidence.

the statutory counts

16 As against each defendant the plaintiff invokes each of four sub clauses of reg 73 of the Regulations made pursuant to the Construction Safety Act 1912 (now repealed), formerly the Scaffolding and Lifts Act 1912. The opening words and the relevant sub clauses of the regulation are as follows:

“ 73 . Safeguards and accident prevention measures for construction work
Any person who directly or by his servants or agents carries out any construction work shall take all measures that appear necessary or advisable to minimise accident risk and to prevent injury to the health of persons engaged in such construction work and for this purpose, without limiting the generality of the foregoing, he shall, subject to Regulation 74:

…
(2) provide and maintain safe means of access to every place at which any person has to work at any time;
(3) provide means by fencing or otherwise for securing the safety of any person working at a place from which would be liable to fall a distance of more than1.8m,

…

(5) keep all stairways, corridors and passageways free from loose materials and debris, building materials, supplies and obstructions of every kind;
…
(8) effectively fence in the manner prescribed by these Regulations, all platforms, the open sides of all floors, openings in floors, roofs and platforms into which persons could accidentally walk, the open sides of stairways and stairway landings and all excavations and holes more than 1.5m deep.
Provided that it shall be permissible to remove when necessary any guardrail, fence or part thereof for the purpose of handling materials or for the installation of other work, subject to such guardrail, fence or part thereof for the purpose of handling materials or for the installation of other work, subject to such guardrail, fence or part thereof being at once replaced upon completion of such work…”

17 “Construction work” is defined in s3 of the Construction Safety Act so as to include “building work” which is, in turn defined so as to include:

“work in constructing, erecting, installing, adding to, altering…..that:
(i) is done in relation to a building or structure at or adjacent to the site thereof, or
…”

18 There is no issue that, for the purposes of reg 73, “construction work” was being carried out at the site. Whether it was carried out by the first defendant is a question to which I will have to turn.

19 Reg 74, to which reg 73 is subject, provides, in certain circumstances, for the provision of safety belts, safety lines or safety harnesses or safety nets, apparently as alternative to the requirements of reg 73. Since no such equipment was provided by either defendant it is unnecessary to consider whether that regulation would otherwise apply to alleviate any obligation of either defendant under reg 73 to comply with the four sub clauses set out above. It will, however, having regard to submissions made on behalf of the second defendant, be necessary to return to reg 74.

20 Before moving to consider the specific requirements of each of the sub regulations invoked, it is necessary to deal with an argument advanced on behalf of the first defendant. This argument raised for consideration the opening words of reg 73, specifically the question of whether the first defendant was:

“…[a] person who directly or by [its] servants or agents carrie[d] out any construction work…”

21 Counsel for the first defendant referred to the decision of the High Court in H.C. Buckman & Son Pty Ltd v Flanagan [1974] HCA 30; 133 CLR 422. At that time the opening word of reg 73 (of the Scaffolding and Lifts Regulations, which have been retitled as the Construction Safety Regulations) referred to “building work” where the present regulation refers to “construction work”, but was otherwise not materially different. In that case, the appellant (to which I shall, like the members of the High Court, refer as “Buckman”) had contracted with the NSW Department of Education for the construction of a new high school. Another party, Shaw, sub-contracted with Buckman for the fabrication and erection of steelwork in the construction. The third party (the plaintiff in the original proceedings, Flanagan) sub-contracted with Shaw for the erection of the steelworks. In the course of the erection of the steelworks Flanagan was injured. He sued Buckman and Shaw as individual tortfeasors. Barwick CJ, with whom McTiernan and Stephen JJ agreed, held that the word “agents” in the opening words of the regulation did not encompass persons working as independent contractors who were themselves carrying out building work. As an independent contractor, Flanagan had failed to establish that the regulation imposed upon either Buckman or Shaw any duty to him.

22 Counsel for the first defendant relied upon the decision in Buckman to urge, in the present case, a like conclusion – that is, that the second defendant was an independent contractor, and that that absolved the first defendant of liability to the plaintiff. In my view, that represents a misconception of the applicability of the decision in Buckman. The salient feature on the facts in Buckman was that Flanagan himself had contracted to undertake “the relevant building work” to the exclusion of Buckman. The question here is not whether the first defendant had sub-contracted building works to the second defendant, but whether it was itself engaged in relevant building work such as to involve the duties imposed by the regulation. The decision in Buckman turned on the identification of “the relevant building work”, which had, in effect, been assigned to Shaw, and reassigned to Flanagan.

23 The application of Buckman was considered by the Court of Appeal in Maggiotto Building Concepts Pty Ltd v Gordon [2001] NSWCA 65, unreported, 30 March 2001. The facts in that case bore this relevant similarity to those in Buckman: the defendant (“Maggiotto”) contracted, as head contractor, to construct home units; it engaged the plaintiff (Gordon) to perform carpentry work; specifically, it engaged Gordon as a sub-contractor and not as an employee. Ipp JA, with whom Meagher and Stein JJA agreed, considered the decision in Buckman and held, on the facts of Maggiotto, that, while Gordon was a sub-contractor for the purposes of undertaking the carpentry work, nevertheless, as head contractor, Maggiotto was engaged in building work. Ipp JA wrote:

“36…Maggiotto coordinated and supervised the different trades required for the completion of all the building work on site, and supplied the materials necessary for the trades to carry out their work. In performing these tasks Maggiotto was…performing building work (and, hence, construction work) within the meaning of the definition of s3 of the Construction Safety Act .”

24 It is therefore necessary to take a moment to examine the evidence relating to the role of the first defendant in the project at the North Sydney Swimming Pool. Ex DD is a bundle of documents relating to the first defendant. The first document, which is undated, is on the first defendant’s letterhead and is headed “PROJECT DESCRIPTION”. It contains the following:

“1. Hansen Yuncken have been engaged by North Sydney Council to undertake the following works at North Sydney Olympic Pool:

· Install new pool filtration equipment to the existing 50.00 pool.

· Refurbish and upgrade the existing heritage listed buildings and grandstand.

· Construct new 25.00 lap pool, wading pool and facilities.

· Construct new roof over 25.00 pool and existing grandstand.

…”

25 Another, bulky document, which appears under tab 7 in the bundle, bears the first defendant’s name and logo, and is entitled “PROJECT MANAGEMENT PLAN”. In an introduction, headed “North Sydney Pool”, the following appears:

“The purpose of this Project Management Plan (PMP) is to provide an easy reference document to assist in the management of activities on the project, as they relate to Hansen Yuncken certified management systems…”

26 There is much more, but it is unnecessary to go into detail. I am abundantly satisfied that the first defendant was engaged in building work and therefore “construction work” for the purposes of the opening words of reg 73. While it had sub-contracted the formwork aspect of the project to the second defendant, it had not done so in such a way as to relieve itself of overall responsibility for the relevant “construction work”, and maintained overall control and coordination of the site and the works. I reject the argument that first defendant was not bound by the obligations imposed by reg 73.

27 No corresponding submission was made on behalf of the second defendant and there is no reason whatsoever to doubt that that it was bound by reg 73.

28 That makes it necessary to consider whether either defendant has been shown to have been in breach of any of the obligations therein contained. In written submissions counsel for the first defendant argued that no breach of sub-clauses 2, 5 or 8 had been established against it. However, as counsel also (para 44) expressly disavowed any such contention in relation to sub-clause (3), it is superfluous to deal with those arguments. The concession was, again, realistically made. Clearly, the plaintiff was working at a place from which he was liable to fall a distance of more than 1.8 metres, and clearly no provision was made by fencing or otherwise for securing his safety. I am satisfied that a breach of reg 73(3) has been established against the first defendant. Breach of statutory duty has thus been established against the first defendant.

29 Senior counsel for the second defendant advanced a single argument in opposition to the plaintiff’s plea that it was, in the same respects as the first defendant, in breach of the statutory duty that it indisputably owed him. This argument centred on reg 74, sub-clause (1) of which is in the following terms:

“(1) Where there is a risk that a person engaged in construction work may fall because there is no adequate hand hold or foot hold, the person in charge of the construction work shall provide -
(a) a safety belt and safety line or safety harness and safety line complying with the requirements of AS1891 for the use of that person;
or
(b) a safety net complying with the requirements of BS3913, while the work is being carried out.”

30 Senior counsel argued:

“Regulation 74 is to be read with Regulation 73 so as to exonerate non compliance with the requirements of Regulation 73 where such compliance is impracticable. In those circumstances, the obligations provided by Regulation 74 are substituted”.

31 Senior counsel went on to argue that, in the present case, fencing was impracticable (because fencing was not the responsibility of the second defendant but of the first, and because the second defendant proposed to undertake the operation upon which the plaintiff and Mr Stipic embarked in a different, and appropriate manner). Finally, senior counsel argued that the plaintiff had not, in the statement of claim, made any allegation of breach of reg 74.

32 Smith v Rex Building Co Pty Ltd [1962] NSWR 1057; 63 SR(NSW) 32 was cited as authority for the proposition stated above.

33 As in Buckman, the legislation under consideration in Smith was the Scaffolding and Lifts Act 1912 and the regulations made thereunder.

34 The second defendant’s argument overlooks two fundamental circumstances. The first is that reg 74, as it existed in 1963 when Smith was decided, was in significantly different terms to its present terms. The terms of the regulation which the court in Smith was considering are set out at p35 of the report. The regulation then provided:

“If the special nature or circumstances of any part of a building work render impracticable compliance with the provisions of Regulation 73 designed to prevent the fall of any persons engaged on that part of the building work, then those provisions shall be complied with so far as practicable and, except for persons for whom there is adequate hand hold and foot hold, the contractor or person in charge of the building work shall provide safety nets or safety belts and lifeline of a type approved by the Chief Inspector which were so far as practicable enable such persons to carry out work without risk of serious injury”.

35 Regulation 74 was amended to its present form in 1987.

36 The court (Sugerman, Collins and Jacobs JJ, each of whom delivered a separate judgment) proceeded on the basis that reg 74 operated, in effect, as a defence to a plea or pleas under reg 73. The defence made available by reg 74 had two limbs – firstly, that compliance with the provisions of reg 73 was impracticable; the second that the alternative safety measures for which reg 74 made provision were in existence. It follows from this that it lies upon a defendant to plead reg 74; and that the onus of proving the two limbs of reg 74 lay upon a defendant. So much was held in Storozuk v Commissioner for Railways [1963] SR (NSW) 581. This is the second circumstance to which I referred above.

37 Reg 74 in its current form cannot readily be interpreted as it was in Smith. Only by a somewhat artificial construction could it be read as providing a defence to an alleged breach of reg 73. It does not require, as a precondition to the application of its provisions, that compliance with reg 73 be impracticable. It seems to me that reg 74, as it now operates, imposes separate and different obligations upon the person in charge of the particular construction work involved. It is not necessary to take further time upon reg 74: it has not, on the pleadings, been invoked by any party; to the extent that it has, in the submissions, been invoked on behalf of the second defendant, that reliance is wholly misplaced. Reg 74 affords no defence or answer to the second defendant in respect of the plaintiff’s allegations of breach of statutory duty.

38 In the circumstances I cannot other than be satisfied that the plaintiff has established that the second defendant was in breach, of, at least, sub-clauses (3), (5) and (8) of reg 73. I am satisfied that there was a direct causal connection between its breaches of sub-clauses (3) and (8) and the plaintiff’s injury. Whether there is such a direct causal link between the breach of clause (5) and the plaintiff’s injury is not so clear but I consider, on the balance of probabilities, that that link does exist. So far as the evidence goes, the plaintiff was struck by a piece of loose material or building material, which was on the concourse. It was this that precipitated his fall into the void.

39 Clause (2) of reg 73 is more difficult to apply to the present case, but I am inclined to the view that, even if the concourse could be said to have provided a means of access to any place at which the plaintiff had to work, (which I doubt), and (if so) that the means of access was not safe, I tend to the view that no causal connection has been established between that breach and the plaintiff’s injury. The plaintiff had in fact gained access to the place at which he was working at the time of injury. His injury did not involve any means of access to the place at which he had to work, but rather the safety of the place at which he was in fact working. In the light of the conclusions I have reached in relation to the other statutory counts it is unnecessary to take further time on this sub-clause.

40 It follows from what I have said that the plaintiff has succeeded in establishing that each defendant was in breach of its common law duty of care to take reasonable care for his safety; and in breach of a duty which, pursuant to statute, it owed him.

41 It will become necessary to consider the damages to which he is thus entitled.

contributory negligence

42 Before coming to the question of damages it is necessary to deal briefly with the contentions made on behalf of the first defendant that the plaintiff’s verdict should be reduced by reason of his contributory negligence. Three matters were argued in support of the first defendant’s plea. Firstly, my attention was drawn to evidence that, on the commencement of his employment on the site, the plaintiff was required to and did attend an induction at which safety issues were the focus of some attention. Under Tab 7 in exhibit DD (a bulky document entitled “Project Management Plan”), appears a section (Section 9.0) entitled “Site Induction”. On the 8th page of that document appears the following:

“ Hansen Yuncken Health and Safety Policies
Here is your personal copy of the above policy…”

43 Counsel for the first defendant invited me to infer from this that the plaintiff had in fact been given his own copy of the first defendant’s policy. I am not prepared to draw that inference. Certainly, the document tends to suggest that that was the intention of the person who authored the document, but that does not establish that the intention was brought into effect. Neither the plaintiff or Mr Stipic was asked whether he had been given a copy of the document, and there was no evidence from any employee of the first defendant that that had been done. But, in any event, the “policies” referred to has little to do with the circumstances of the plaintiff’s injuries.

44 Section 9.3 of the document is under a sub heading “SITE CONSIDERATIONS”. I was specifically asked to infer that these policies were given in writing to the plaintiff. Without being exhaustive, I will mention some of the considerations listed. They include “use and abuse of plant, tools, equipment and construction materials”, cleanliness of site, alcohol and drugs, and smoking. At para 9.4, headed “SAFETY”, appear references to first aid, emergency evacuation and accident procedures, site safety committee, personal protective equipment, and other items. Under a sub heading “employees responsibility” it is stated that:

“The employees are obligated to use all safety gear supplied and to report any unsafe equipment of (sic) conditions”.

45 There is nothing in the document that would fix the plaintiff with any warning about proceeding to do his work as he did, using the power board and the bridge. There is, therefore, nothing to suggest that in using the bridge and being present on the top of the grandstand, the plaintiff flouted or disregarded any instructions or advice given to him.

46 The second matter counsel referred to in relation to contributory negligence involved a direct criticism of the plaintiff. It is best to extract this contention from the transcript of the oral addresses. Counsel put it in this way:

“…the plaintiff going over the bridge with the intention of stripping the brace without having agreed to a plan with Ante Stipic and how to do it”.

47 I do not fully understand how this was intended to establish contributory negligence. The lack of a formulated plan to remove the braces was not in any way causative of the plaintiff’s injury. His injury occurred because he was on a dangerous, unfenced platform when struck by a piece of debris.

48 Finally, in support of the claim of contributory negligence, counsel referred to evidence contained in exhibit 1D16. This was the record of an interview conducted by Workcover with Mr Darryl Jeffries on 29 May 2000. Mr Jeffries had been Site Manager of the project. In the answer to question 21, Mr Jeffries is recorded as having said that, at 9.30 am on Thursdays, an Occupational Health and Safety Committee meeting was held, he being the secretary of that committee. He said that on 25 November, which was a Thursday, the committee “went on a site walk”. He said that he found the plaintiff and Mr Stipic working in an unsafe manner on the air handling unit wall and that the plaintiff had been given a verbal warning and told that this would be followed by written warning. He claimed that the plaintiff and Mr Stipic had been prevented from continuing to work in an unsafe manner but that, after the lunch break, the plaintiff returned to an area “where he shouldn’t have been”. Mr Jeffries is then recorded as saying:

“He got out behind the fence on top of the grandstand and was stripping a horizontal brace, of which one end became free (opposite to him) and the other end of the brace came down. His end of the brace came up and he was standing over it.”

49 Mr Jeffries was not called to give oral evidence. An explanation for his absence was provided. He told a licensed private investigator that he was now living in New Zealand and in poor health and unable to return to Australia. I am satisfied that this explanation precludes any inferences which the decision in Jones v Dunkel [1959] HCA 8; 101 CLR 298 would otherwise permit. Nevertheless, the weight that can be given to his assertions is very limited indeed. There was, in fact, a substantial issue as to whether Mr Jeffries had attended the meeting on 25 November, but there was also evidence that he had participated at least in the “site walk”. Nevertheless, the fact remains that the assertions made by Mr Jeffries were not tested in cross- examination. They were not put to Mr Stipic, who had been in the company of the plaintiff for virtually the whole of the day. Nor were they put to the plaintiff, although, since his injury is such that he has no recollection of the day of his accident or the preceding day or two, this is hardly surprising.

50 I am not satisfied that the plaintiff was given any caution about the way he performed his duties, certainly not a warning relevant to his injuries. All of the evidence points to both defendants having conducted themselves in such a way as to invite the plaintiff and other workers on the site to use the dangerously sited power board to obtain electricity for their tools, and to use the dangerous bridge in order to gain access to the power board. It would be quite inconsistent with that to warn the plaintiff to stay away from the concourse on which the power board was situated. I therefore reject the allegation of contributory negligence.

the relative responsibility of the two defendants

51 It is now necessary to consider the respective liability of the defendants. This determination is relevant both to the application of s151Z of the Act and to the cross-claims.

52 What I propose to do is make findings as to the relative liabilities of the defendants and direct the parties to formulate orders properly reflecting the consequence of those findings.

53 Four matters of some importance may here be mentioned. These concern the circumstances to which it may be said the accident was attributable, and thus the apportionment of liability between defendants. The first matter to mention is the construction and continued existence of the makeshift bridge. It was common ground that this had been done at the instance of Mr Day, the second defendant’s foreman. There was some dispute about whether, and if so when, the first defendant had become aware of the existence of the bridge, and of its regular use by various tradesmen on the site. A further side issue arose as to when the bridge was constructed, and another as to Mr Day’s purpose in its construction. I will deal with these below.

54 The second matter to note relates to the location of the power board on a five metre high, unfenced on one side, structure. This, it was accepted, had been done by, and was entirely the responsibility of, the first defendant. It was accepted on behalf of the first defendant that its placement in such a location was “inappropriate”.

55 The third matter concerns the absence of fencing on that side of the grandstand which borders the void. There was little, if any, direct evidence concerning the responsibility for the fencing that was in place, or for the absence of fencing where it ought to have been placed. Since the second defendant was contracted for formwork purposes only and since no evidence or argument was addressed to the issue I would conclude that the responsibility for the placement of the wire fence, and the consequent unguarded drop from the concourse, lies entirely with the first defendant.

56 It is plain that an unfenced five-metre structure creates a serious risk of injury by falling. The photographs which constitute exhibit A demonstrate that the risk was a real one, and was aggravated by the condition of the grandstand surface. It is uneven, littered with pieces of stone or concrete. A grave risk of tripping on any of these objects existed. It could be expected that workmen using the surface would, at times, be carrying tools of trade and therefore be more susceptible to tripping on the various objects and items littering the surface. Power cords, running from the power board, are in evidence, creating further, and obvious, danger.

57 It is plain that, if the concourse were to be used by tradesmen on the site, it should have been fenced on the side which opened onto the void. Some attempt had been made by the first defendant to restrict access to the concourse from the grandstand proper by the erection of the steel mesh fence and the padlocked gate. That attempt was effectively circumvented by the erection of the makeshift bridge, providing ready access from the other direction. It was the placement of a power board in that location that provided the motivation for the construction of the bridge and an incentive to tradesmen to gain access to the concourse. The erection of the bridge provided access, which enabled tradesmen to bypass such minimal safety precautions as had been put into effect. Both circumstances, that is, the location of the power board and the erection of the bridge, amounted to an invitation to tradesmen to take themselves to the concourse, which was, as I have already found, quite unsafe.

58 The fourth matter concerns the availability or otherwise of safety harnesses on the site, and, if harnesses were not available, the identification of which of the two defendants bears the responsibility for the failure to provide them. There was conflicting evidence about whether safety harnesses were available. On balance I lean to the view that none was readily available. However, it is hardly necessary to reach a firm conclusion on that question. Since the uncontested evidence is that, in the area of the grandstand, there were no anchor points for harnesses, whether any were or were not present is an entirely irrelevant question. I am of the view that the responsibility for the provision of harnesses and anchor points lay with the first defendant.

59 Some contested factual issues arose in relation to the bridge. Although he had, at the relevant time, been employed by the second defendant, Mr Day was called to give evidence on behalf of the first defendant. He admitted that the bridge had been built by one of the form workers at his direction. He said that he did this for his own access to a different part of the site. Initially, he denied having spoken to anybody from the first defendant about the construction of the bridge. He maintained this position for some time in cross-examination but appeared to weaken it slightly as the cross-examination proceeded. He acknowledged the possibility that he may have discussed the construction of the bridge with an employee of the first defendant.

60 This is to be contrasted with the evidence given by Mr Stipic. Mr Stipic was insistent that he had heard Mr Day discussing the construction of the bridge with a foreman employed by the first defendant. He was uncertain of the details of the conversation, and could not identify which (if either) of the two had initiated the discussion.

61 On balance, I prefer the evidence of Mr Stipic in this respect. I found Mr Day not to be a helpful witness. He appeared to me to be defensive and, at times, even obstructive. He appeared to be resentful, although at what his resentment was directed I could not discern. That, added to the unequivocal tone of his initial answers on this issue, and the subsequent dilution of his position, persuades me that it is more likely than not that Mr Stipic did overhear some conversation between Mr Day and an employee of the first defendant concerning the construction of the bridge. I am not sure that that advances the position a great deal, although it fixes the first defendant with actual knowledge of the existence of the bridge and some complicity in its construction. I would, in any event, have held that, if the first defendant did not know of the existence of the bridge, then it should have done. That finding may, of course, have different ramifications depending upon when it has been shown that the bridge was built. As to this the evidence was imprecise.

62 When Mr Day was asked how long before the plaintiff’s accident the bridge had been built he said that he was not sure, it could have been a couple of weeks. Another witness, Mr Peter Johnson, had commenced working at the site as a carpenter employed by the second defendant six or seven days prior to the plaintiff’s injury. At that time the bridge was already in place. The plaintiff, in an interview with a Workcover inspector on 6 April 2000, said he was not sure when the bridge was built, possibly “a couple of days before the accident”.

63 The bridge, once constructed, was in plain view of anybody on the site and must have been plainly apparent to the supervising employees of the first defendant. In my view, the first defendant should be regarded as having been on notice of the existence of the bridge from, at the very latest, very shortly after it was constructed. The exercise of reasonable care for the safety of workers on the site demanded that the first defendant take steps, as soon as the bridge had been constructed, to have it dismantled. There was some evidence, which I found unpersuasive, that Mr Jeffries had asked the second defendant either to “upgrade” or remove the bridge. At best, this was a half-hearted attempt to alleviate the danger created, and was not, in any way, enforced.

64 I have concluded that each of the defendants must bear equal responsibility for the construction and the continued existence of the bridge: the first defendant because it had overall control of the project, the second because it was clearly responsible for the construction and use of the bridge.

65 Counsel for the first defendant advanced three matters which he contended enlarged the liability of the second defendant and reduced that of the first. One of these was a document, exhibit 1D5. This was a document entitled “SUB CONTRACTOR TENDER INTERVIEW MINUTES AND TRADE CHECK LIST”. It is dated 26 August 1999 and appears to be the record of an interview conducted on behalf of the first defendant with a representative of the second defendant. The document shows that the second defendant’s representative undertook that the second defendant would maintain full time supervision during works on the site, and that the price included provision for work to be carried out in accordance with:

”all relevant standards, codes, regulations, statutory and authority requirements”;

and acknowledged that the second defendant was required to submit a safe work method statement before commencement of work.

66 The second matter raised by counsel concerns “casual acts of negligence committed by Mr Day”, this plainly being a reference to the construction of the bridge. The third matter is identified as casual acts of negligence committed by Mr Stipic.

67 While I accept that the second defendant, as the plaintiff’s employer, had (regardless of any agreement it made with the first defendant) an obligation to ensure the plaintiff’s safety on site and that the construction of the bridge was a significant factor in the plaintiff’s injury, I do not accept that Mr Stipic’s conduct was such as to have contributed to the plaintiff’s injury.

68 Against the two matters that are relevant to the second defendant’s proportionate responsibility must be balanced the first defendant’s overriding responsibility for the project, its responsibility for the placement of the power board in the dangerous location, and the construction of the wire fence in a place other than on the edge of the concourse, creating an unfenced platform.

69 Ultimately, I have concluded that the responsibility for the plaintiff’s injury is to be shared equally between the defendants.

DAMAGES

70 The plaintiff was born in Bosnia on 11 July 1963. He was educated to technical college level and worked as a traffic inspector before undertaking some military service. He and his wife and 3 children migrated to Australia in 1995. He obtained work as a labourer and ultimately as a form work carpenter, the work he was doing at the time of his injury. On 25 June 1999 he commenced employment with the second defendant. He was 36 years of age at the time of his injury. He had mastered the English language to a reasonable degree. Prior to his injury his family life was unremarkable and happy. He engaged in the usual activities with his children, two daughters and a son; his wife, who had not been in paid employment outside the home, and he divided the household chores in a fairly traditional fashion, she working inside the house and he managing the outside.

71 Following his injury the plaintiff was initially taken to the Royal North Shore Hospital where he remained an in-patient until 21 December 1999, on which date he was transferred to the Brain Injury Unit at Westmead Hospital. He had a period of 28 days of post-traumatic amnesia. A useful summary of the plaintiff’s overall diagnoses is to be found in a report of his regular general practitioner, Dr Kek, of 19 December 2000. The plaintiff was diagnosed as having a brain injury; a fractured left shoulder; fractures to both wrists; a fractured nose; and a torn meniscus in the knee.

72 On the day of his admission he underwent emergency surgery. The brain injury resulted in complete blindness in the left eye and significant loss of sight in the right eye, loss of hearing, causing a loss of balance; he underwent personality change, possibly as a result of the brain injury and constant pain, stiffness and severely reduced mobility in both arms.

73 The disabilities are permanent and he has a poor prognosis. He now requires assistance in almost all activities of daily living. While still at Royal North Shore Hospital he underwent a series of surgical procedures. All medical practitioners who reported for the purpose of these proceedings agreed that no improvement is likely.

74 The plaintiff is highly dependant upon his wife for assistance, including in relation to the most basic and personal matters of hygiene. He suffers regular headaches and occasionally falls because of his loss of balance. He has, not surprisingly, suffered from periods of depression for which he has been prescribed medication.

75 He seeks to ameliorate his condition by regular attendances at a gymnasium, and walking (with his wife) for an hour each morning and each evening. His wife assists him for two hours per day in an exercise program. She also gives him massages.

76 His permanent impairments have been variously assessed: Dr Beard, a hand surgeon, in May 2002, accessed at 20% impairment of the right arm and 40% of the left arm. Professor Jones, who examined the plaintiff on behalf of the second defendant, in a report dated 27 March 2002, assessed the right and left arm disabilities as, respectively, 30% and 40%, the left leg disability impairment as 10%, and the neck as 5%.

77 There has been some discussion of future surgery but this is fairly uncertain. The plaintiff himself is reluctant to undertake any further surgery unless given a guarantee of success, and this the medical practitioners are not prepared to give. He has a propensity to arthritis in the wrists, elbow and shoulders, he suffers from some scaring.

78 There was little dispute about either the permanency or the seriousness of the plaintiff’s physical injuries. It was not seriously suggested that he could ever resume employment. The principal and, it might be said, the only real, area of factual dispute concerned the extent of any cognitive deficit suffered by the plaintiff. This dispute arose from neuropsychological testing undertaken by two clinicians; Dr Fernando Roldan (on behalf of the first defendant) and Dr Sunny Lah, who performed tests and examined the plaintiff at the request of his own solicitors. Dr Roldan’s testing took place on 13 March 2003. This consultation, which appears to have included Dr Roldan taking a lengthy history, extended over four and a half hours.

79 Dr Roldan administered two separate tests designed to expose attempts to feign cognitive incompetence. In each case the results were such as to lead Dr Roldan to the conclusion that the plaintiff was in fact making such an attempt.

80 Dr Lah examined the plaintiff on 12 September 2003, six months later. She concluded that the plaintiff suffered generally reduced intellectual ability, with results falling into the borderline to low average range. This appeared to me to be consistent with the assessment of Dr Derek Lovell, who noted that significant brain damage is consistent with 28 days of post-traumatic amnesia, which the plaintiff undoubtedly suffered.

81 Both Dr Lah and Dr Roldan gave oral evidence. Each was cross-examined.

82 The oral evidence did little, in my opinion, to resolve the difference in the results between the two sets of tests. Each clinician adhered to the opinion he/she had originally formed and had stated in his/her report.

83 There was one additional piece of evidence which throws some light on this question. The plaintiff was examined on 27 February 2001, by Ms Alexandra Walker, a senior clinical neuro-psychologist and clinical psychologist, attached to the Brain Injury Rehabilitation Unit of the Westmead Hospital. In her report Ms Walker wrote:

“The most striking feature was extreme slowness in performing tasks, and this was in marked to (sic) contract to the normal rate of speech.”

84 Under the heading “Conclusions” ,Ms Walker wrote:

“The discrepancy that his subjective memory complaints may be attributable to his lack of activity at present, such that all days seem the same. The most prominent feature of his presentation is marked slowing in the speed of performing tests, whether the tasks are written, spoken, simple or complex. The degree of slowing is remarkable, in that it is much greater than would be expected in even severe brain injuries. Moreover, it is in contrast to his normal rate of speech. The cause of this slowing is unclear. While full assessment of higher level (executive functions) was incomplete, there were indications of perseveration suggesting mental inflexibility and perhaps behavioural/emotional changes (lack of due concern about deficits) which would be consistent with extensive involvement of frontal brain areas.”

85 It is, however, the inconsistency between the results of tests administered by Dr Lah and Dr Roldan, which gave rise to the area of dispute. Its real significance, for the purpose of the assessment of damages, is to do with the level of care the plaintiff will need in the future. I will come back to the evidence in relation to that question shortly.

86 There was nothing in the way the plaintiff gave his evidence which led me to believe that he was in any way exaggerating his condition. Indeed, his condition is so severe that it hardly could be exaggerated, and he has no need to do so. There was not the slightest reason to believe that the plaintiff was aware that a greater level of cognitive deficit would have the consequence of increasing the damages awarded to him by reference to the level of care for which allowance would be made. Further, had he done so, it is inexplicable that he feigned or exaggerated his condition on examination by Dr Roldan, but did not do so when examined by Dr Lah. I am satisfied that, whatever it is, there is an innocent explanation for the discrepant results. It may well be that, at the time of examination by Dr Roldan, the plaintiff was experiencing one of his periods of depression, or that, for some other reason, his concentration or application was not what it subsequently was when he performed the tests administered by Ms Lah. Although possible explanations were explored in oral evidence, nothing emerged which provided me with an explanation I considered satisfactory. The issue remains something of a mystery. Dr Roldan said that, because of the view he took of the plaintiff’s performance of the tests, he was not able to express a view about the plaintiff’s level of cognitive deficit. In this respect, therefore, I accept the evidence of Dr Lah. I am satisfied that the plaintiff suffers a significant cognitive deficit. This is, as I have indicated, consistent with other medical evidence concerning the effects of the 28-day period or post-traumatic amnesia.

quantification of damages as against the first defendant:

87 As indicated earlier, the damages to be awarded against the first defendant, are, in the first instance, to be calculated by reference to conventional common law principles. By reason of s151Z of the Act, it will be necessary for an adjustment to be made to that calculation in due course.

88 The plaintiff claims damages under a variety of heads. I will deal with each in turn. Both the plaintiff and the first defendant provided a schedule setting out the figures they contended were appropriate in respect of each claimed head of damages. In relation to these heads of damages which continue to accrue, the lapse of time since the calculations were performed has rendered them out of date and it will be necessary that they be adjusted to bring them up to the date of judgment.

general damages:

89 I have already outlined the evidence relevant to the assessment of the general damages to which the plaintiff would, at common law, be entitled. He was 36 years of age at the time of his injuries. His quality of life has, effectively, been all but destroyed. From being a fit, active and productive man, enjoying a settled and happy family life and work, he has become an invalid, heavily dependent upon his wife, and to a lesser extent, his children. He has lost most of his sight and most of his hearing and much of his mobility. He has lost a significant proportion of his cognitive ability, but not so much to be unaware of his plight. He suffers from pain and from depression. There is no prospect of improvement in his quality of life. Senior counsel who appeared for the plaintiff proposed that general damages should be assessed at $250,000.00. In his schedule of damages (exhibit 1D17) counsel for the first defendant proposed that general damages should be quantified at $180,000.00. I am of the view that the plaintiff’s proposed figure is realistic in the light of all of the circumstances I have outlined. I propose to adopt that figure.

interest on general damages:

90 The plaintiff is entitled to an award of interest at 2% per annum on that proportion of the general damages component that is attributable to the period between the date of the accident and the date of verdict. That requires an apportionment of the award of general damages to delineate that which is attributable to that period, and that which is attributable to the future. By the time verdict is finalised, it will be very close to 5 years since the plaintiff suffered his injuries. At 41 years of age, on the Australian life tables, he has an expectation of just 38 years. The whole of that period will be marred by the injuries he has suffered. However, while his life will not improve markedly from the way it is now, the worst of the suffering, both physical and emotional, occurred in the early days after the accident. I think the apportionment of the award of general damages should be 60% to the period to judgment, and 40% for the future.

past economic loss:

91 A schedule showing the plaintiff’s loss of income to the date of the schedule was appended. That schedule is now out of date and the plaintiff’s losses to date of judgment will have to be revised. There was a dispute as to the quantification of past income losses. Since this was primarily argued by senior counsel for the second defendant and adopted by counsel for the first, I will defer giving reasons for my determination until dealing with the quantification of damages against the second defendant; it is sufficient here to say that I accept the figures advanced on behalf of the plaintiff. The figure as the date of the schedule was $232,286.00. I propose to allow that amount, together with such economic loss as has accumulated since then.

interest on past economic loss:

92 The plaintiff is entitled to an award of interest on his economic loss to date, but this, too, will have to be brought up to date.

Fox v Wood [1981] HCA 41; 148 CLR 438:

93 The plaintiff is obviously entitled to an award under this head of damages and is not in dispute. The figure provided will need to be brought up to date.

loss of superannuation on past economic loss:

94 The figure proposed on behalf of the plaintiff is $29,070.00. This, too, will need to be brought up to date. I accept the plaintiff’s calculations.

interest on superannuation losses:

95 The plaintiff is entitled to an award of interest, at the suggested figure of 5% per annum, on that amount awarded in respect of past superannuation losses. It will be necessary for that calculation to be performed.

out of pocket expenses to date of judgment:

96 The figures proposed on behalf of the plaintiff are not in dispute, but are, like other heads of damages, out of date and need to be adjusted. Specifically, besides the amounts of medical expenses paid by the workers compensation insurer, the plaintiff claims a sum of $260.00 per annum for car maintenance (a task he had previously undertaken himself) and a single sum of $3,000.00 for house painting (a task he would, uninjured, have undertaken himself). I propose to allow these two amounts, the amount for car maintenance to be adjusted by being brought up to date.

interest on past out of pocket expenses:

97 As claimed by the plaintiff, he is entitled to interest calculated at 5% per annum on that amount awarded in relation to car maintenance, and 10% per annum on the amount awarded in respect of house painting, for the period which has elapsed since the payment was in fact made.

future economic loss:

98 Allowance will be made for future economic loss based upon the figures allowed for the past.

loss of superannuation on future economic loss:

99 Again, the plaintiff is entitled to the amount claimed, brought up to date to the date of judgment.

future out of pocket expenses:

100 In his schedule, senior counsel for the plaintiff claims, and quantifies, amounts attributable to anticipated expenses referable to consultations with general practitioner, rehabilitation physician, ophthalmologist; for medication, physiotherapy, psychological counselling; for travel to and attendance to gymnasium; for car maintenance; for the extra costs incurred in holidays; and an allowance for possible surgery to the shoulder and wrists.

101 In his response (exhibit 1D17) counsel for the first defendant appears to have accepted all of these with the exception of the amount claimed in relation to car maintenance and possible future surgery to the shoulder and wrists.

102 The reduction sought in relation to car maintenance was relatively small; senior counsel for the plaintiff claimed an amount of $5.00 per week for the 38 years of life presumed to be remaining to the plaintiff; counsel for the first defendant proposed that this be allowed only for the years that remain until the plaintiff attains the age of 65.

103 There is, in my opinion, no reason why it should be assumed that the plaintiff would cease car maintenance coincidental with retirement from paid employment; on the other hand, it is, realistically, unlikely that he would continue to undertake his car maintenance until the age of 79. Doing the best I can, I will allow a figure that falls between the two proposals; I will allow for car maintenance at the rate claimed for 30 years. The parties can perform the calculations.

104 The other challenge to the plaintiff’s claim is in relation to the possible surgery for the shoulder and wrists. Rather cryptically, counsel for the first defendant noted on the schedule, “no evidence”. I have, however, already referred to some evidence of the possible need for future surgery, and the plaintiff’s attitude to it. I think the amount claimed, $10,000.00, is not an unreasonable allowance for what I consider to be the very real possibility that the plaintiff’s condition will degenerate to such an extent that he will change his attitude to the recommendation to surgery. I propose to allow the $10,000.00 claimed.

105 In other respects, there being no apparent opposition to the claims, I propose to allow the expenses claimed.

past and future domestic assistance: (Griffiths v Kerkemeyer [1977] HCA 45; 139 CLR 161):

106 This is the area which sparked the greatest degree of controversy. The plaintiff’s claim is made in a number of segments.

(i) past domestic assistance rendered while he was in hospital.

The first area is identified as:

“Attendance in the hospital “, and further identified as “care at Westmead after PTA (post traumatic amnesia)

107 The claim that is made is for 10 hours per day for 19 days at $25.80 per hour, and another 10 hours per day for 19 days, at $16.67 per hour. This was explained by senior counsel for the plaintiff in his oral address as being based upon the plaintiff’s hospitalisation at Westmead for about a month, during which his wife attended on a daily basis. Senior counsel said that the calculations had been performed “by reference to the different hourly rate”. Counsel for the first defendant appeared to resist any allowance for domestic assistance during this period, merely noting on his schedule:

“attendant care by hospital”.

108 The plaintiff’s wife gave evidence to support the claim. She said that when the plaintiff was in the Brain Injury Unit at Westmead, she “was there all the time”, giving him his meals and assisting him in using the toilet. While it is probably true that, had the plaintiff’s wife not been present and available to perform these tasks, they would have been attended to by nursing or other hospital staff, I have no doubt that the plaintiff’s wife’s attendance was beneficial to the plaintiff’s rehabilitation and recovery. I propose to allow the amount claimed. Following that I will also allow interest as claimed.

(ii) past domestic assistance: post hospital

109 A claim is also made for past domestic services after the plaintiff’s discharge from the hospital. The claim made on behalf of the plaintiff, by reference to a schedule, is for $406,100.00. That is to the date the schedule was prepared, February 2004. In response, counsel for the first defendant has inserted a figure of $290,380.00. He did not address any oral or written argument to his proposal. The claim is quantified at a daily rate, varying, and increasing from time to time. This was said to be “as per Silver Circle rates”. The amounts are borne out by the evidence. The plaintiff’s wife has, effectively, devoted herself to the care of her husband since he was discharged from hospital. I have already mentioned that she walks with him two hours per day, assists him with his exercise program for two hours per day, and assists him with all sorts of personal matters. She also transports him to medical appointments and to the gymnasium. I am satisfied that the plaintiff’s proposal is reasonable and should be allowed in the amount claimed, adjusted to bring it up to date.

(iii) future domestic assistance:

110 That brings me to the most contentious area of all, the allowance that should be made for future domestic services. There is no dispute that some allowance should be made, and that it should be significant. The plaintiff claims a total of $2,733,804.00. This is made up by claims for a full time carer, a handyman for 3 hours per week, and a case manager for 1 hour per week.

111 Counsel for the first defendant concedes an amount of $953,400.00, being an allowance for a carer (not full time) and a handyman for 2 hours per week.

112 The plaintiff’s claim is based upon an assessment made by Dr Buckley, a consultant physician in rehabilitation medicine, in a report dated 15 December 2003. Dr Buckley expressed the view that, if family members are not available, the plaintiff would require a full time personal care assistant, in order to help him not only to undertake all his personal care activities to an adequate level, but also to arrange and maintain an activity programme designed to provide him with mental and physical fitness.

113 The challenge that was made to Dr Buckley’s assessment was that it was based principally upon Dr Lah’s assessment of the plaintiff’s brain injury. This, in turn, depended upon submissions, which I have already rejected, that Dr Lah’s assessment should not be accepted.

114 The plaintiff has no capacity for independent living. He is, as my earlier review of the evidence makes clear, almost totally dependent (at present, upon his wife) to maintain any lifestyle. He is unable to function without that assistance. This finding does not depend only upon Dr Lah’s assessment of the extent of his cognitive deficit: it depends also upon the plaintiff’s physical disabilities. Even if it were the case that his intellectual deficit is something less than assessed by Dr Lah, the plaintiff would still require a full time carer. If he were not to be cared for in his own home in that way, it would, I am satisfied, be necessary for the plaintiff to be housed in an institution.

115 I accordingly propose to allow for a full time carer. No challenge was made to the rates claimed and they also will be allowed.

(iv) case manager

116 Counsel for the first defendant does not concede any allowance for a case manager, noting that it was the wife who previously undertook this aspect of management. (I think this represents a misunderstanding of the claim for a case manager: reference to the wife having undertaken these tasks previously, I think is a reference to the evidence that it was the plaintiff’s wife who generally managed the family finances prior to his injury. The claim for a case manager, however, is a claim for an allowance for a person to manage the plaintiff’s medical needs.)

117 Dr Buckley also explained the need for a “case manager”. He wrote:

“In view of the complexity of managing the problems of a person like Mr Oroz, he also requires an independent case manager who is not involved with the day to day care. This role should be undertaken by a health care professional with extensive experience in the management and care of those who have sustained traumatic brain injury…the duty of such a person would be to oversee and coordinate Mr Oroz’s maintenance program and particularly to ensure that he has an adequate level of activity to ensure a reasonable quality of life”.

118 I find the claim made, and the assessment of time necessary, reasonable and I propose to allow it.

accommodation:

119 A claim was also made for modifications to the plaintiff’s bathroom and bedroom to facilitate his access, in the amount of $17,800.00. This was not contested and will be allowed. A further claim was made for additions to the plaintiff’s home in order to allow for a live in carer. This was in its entirety resisted, on the basis that the plaintiff did not require full time care. Since I have rejected that proposition, it follows that some allowance should be made for modifications to the home to allow for a live-in carer.

120 The amount claimed was derived from a report of Mr John Watts, an architect who provided a detailed report. No argument was addressed to the proposition that, should I accept the evidence that the plaintiff requires full time care, I should allow for home modifications to permit carer accommodation, nor that that quantification should be in the amount claimed. I have no material on which to do other than accept the assessment of Mr Watts. I propose to allow the amount claimed.

funds management:

121 It does not appear to have been contested that the plaintiff’s award of damages will need to be managed by a competent and experienced funds manager. I propose to allow for that sum. It cannot fully be assessed until the final quantification of the amount of damages to be awarded.

quantification of damages as against the second defendant:

122 Damages to be awarded against the second defendant are to be determined in accordance with the provisions of the Act. I will deal with the claims made on behalf of the plaintiff, and the second defendant’s responses thereto, in the same way that I have dealt with those in relation to the first defendant. In some cases the quantification of damages is not affected by the modifications made by the Act, but it will be necessary, in some cases, to make reference to the different responses made on behalf of the second defendant.

non economic loss:

123 S151G(1) (now repealed, but as in force at the time of, and continuing to be applicable to the plaintiff’s claim) relevantly provided as follows:

“(2) The amount of damages to be awarded for non-economic loss is to be a proportion, determined according to the severity of the non economic loss, of the maximum amount which may be awarded.
(3) The maximum amount which may be awarded for non-economic loss is [$240,350], but the maximum amount may be awarded only in a most extreme case.

124 Senior counsel for the plaintiff proposed that the plaintiff’s case should be assessed as 90% of a most extreme case; senior counsel for the second defendant proposed 75%.

125 I have already made it perfectly plain that I consider the plaintiff’s injuries, and the consequent impact on his life, to have been verging on catastrophic. I accept the proposal put on his behalf that his case represents 90% of the most extreme case hypothesised in s151G. I propose, therefore, to allow damages for non-economic loss assessed at 90% of the maximum, or $216,315.00.

past economic loss:

126 The plaintiff claims the sum of $232,286.00 by way of damages for past economic loss. This was calculated by reference to a “schedule of pre accident earnings”, which set out, purportedly, the plaintiff’s earnings each week from 6 July 1999 until 23 November 1999. The sum claimed was arrived at by averaging the plaintiff’s earnings over that time. The average weekly figure was shown to be $1,453.45.

127 The schedule showed that the source of the figures used was the second defendant’s records and no issue was taken as to their accuracy. However, senior counsel for the second defendant suggested that the plaintiff’s wage loss should be calculated from a base figure of $900.00 per week, considerably less than the $1,453.45 which results from the plaintiff’s calculations.

128 The figure proposed on behalf of the second defendant was drawn from an “Employer’s Report of Injury” to its workers compensation insurer, dated 29 November 1999, just four days after the accident. In answer to a question asking the “actual current rate per week paid to the worker”, the amount of $1,348.04 gross has been inserted. The form is said to be completed by a Mr Sywak, and signed by him as director. There is no evidence disclosing the source of Mr Sywak’s information when he inserted that figure. I see no reason why that figure should be accepted as more reliable than figures presented to the plaintiff’s solicitors, during the course of preparation for the proceedings, by the second defendant. Criticism was made of the case put forward by the plaintiff on the basis that no evidence was adduced as to comparable earnings from other formwork companies. Such evidence is, of course, admissible and can be useful; however, in my opinion, since the plaintiff was in regular employment with the second defendant, a very reliable indicator, if not the most reliable indicator, of what he would have earned following his injury is what he had in fact been earning prior to his injury. Accordingly, I accept the figures put forward on behalf of the plaintiff, and propose to calculate damages on that basis.

superannuation: past:

129 The plaintiff claims the sum of $29,070.00 for past superannuation. As I indicated in relation to the first defendant, it will be necessary to bring the figure up to date. Senior counsel for the second defendant proposed a lower figure, of $25,222.08. The basis for the discrepancy is the different earnings figure. Since I have accepted the figure advanced on behalf of the plaintiff, damages for past loss of superannuation will have to be calculated on that basis.

superannuation: future:

130 Against the second defendant, the plaintiff claims by way of superannuation lost on future earnings the sum of $97,037.00. The amount claimed, adjusted to the date of judgment, will be allowed.

out of pocket expenses: past:

131 The second defendant does not contest the plaintiff’s entitlement to the figures claimed. I assume that these, too, will have to be adjusted to take account of the time lapse since the document was prepared.

domestic assistance: Griffiths v Kirkemeyer:

(i) services during the plaintiff’s hospitalisation in Westmead:

132 Against the second defendant the plaintiff claims the sum of $3,167.00. This is a lower figure than that claimed against the first defendant by reason of specific provisions contained in the Act limiting the liability of an employer in this respect. The second defendant concedes the plaintiff’s entitlement to this amount and it will be allowed.

(ii) past domestic assistance: post hospitalisation

133 Again, the liability of the second defendant, as employer, is limited by provisions of the Act. The plaintiff claims the sum of $156,020.00 (to February 2004), which the second defendant concedes. This figure will have to be brought up to date but otherwise will be allowed.

(iii) future care:

134 By reason of the provisions of s151K of the Act, a limitation is placed upon the amount of damages that may be awarded against an employer in respect of domestic services gratuitously rendered. No such limitation is placed upon the damages that may be awarded against an employer in respect of domestic services for which the plaintiff will be liable to pay. In Matchan v Lyons [2003] NSWCA 384, unreported, 22 December 2003, Hodgson JA said:

“…the plaintiff must, in order to avoid the restrictions imposed by these sections in respect of future care, prove that he or she will actually incur liability to pay for services in the future.”

135 The evidence in this respect was given by the plaintiff’s wife. When asked about her intention to continue to provide the assistance she has provided to date, she said:

“He is my husband and he is the father of my children and I took an oath and, even if he was in bed, I wouldn’t leave him, certainly not because of problems with sex or anything like that”.

136 When asked if she thought it might be advisable to have assistance from time to time, or have a break, she said:

“My help, what I considered to be help to me, when I see my children laugh and when occasionally on the days when my husband laughs, that’s the help that I need.”

137 On its face, this evidence would suggest that the plaintiff’s wife will continue gratuitously to render the service she has rendered to date.

138 However, in my opinion, it does not bind me, nor indeed enable me, to find as a fact that the plaintiff’s wife will, or will be able, indefinitely to maintain the level of support she now gives. So to find would be to be blind to reality. The plaintiff’s wife is subject to the same vicissitudes as the rest of the population. She may herself suffer injury or illness. Undoubtedly, and inevitably, she will age and must, eventually, reach a point where she will be unable to maintain her present very demanding regime. While her present loyalty and devotion are admirable, it cannot be assumed that they will continue indefinitely. Nor can it be presumed that the children will, or will be able, to undertake the role that she now takes.

139 With this in mind, Beazley JA, with whom Mason P and Meagher JA agreed, in Mortimer v Burgess NSWCA (unreported, 16 June 1997), held that the principles stated in Malec v J C Hutton Pty Ltd [1990] HCA 20; 169 CLR 638, applies to the assessment that gratuitous care will continue to be given.

140 No argument has been addressed to the manner in which I should assess the possibility (which I consider a probability) that a time will come when the plaintiff will be obliged to pay for the domestic assistance he presently receives gratuitously. I will give the parties an opportunity to be heard on this, if they are unable to resolve the issue between themselves.

(iv) case manager:

141 The sum specifically claimed on behalf of the plaintiff against the second defendant for the services of a case manager is $108,240.00. The second defendant responds by contending that there was no evidence that the plaintiff proposed to employ such a person, and that he will continue to be treated under the Westmead outreach team. He proposed that the sum of $25,000.00 be allowed. Senior counsel appeared to accept, fairly, in my opinion, that the claim for an allowance for the employment of a case manager does not come within s151K and is therefore not subject to the ceilings imposed by that section.

142 In my opinion it is not to the point to argue that the plaintiff’s treatment under the Westmead hospital team will continue. What was proposed by Dr Buckley was that the proposed case manager would be a person independent of those providing treatment to the plaintiff and would supervise and coordinate that treatment. I have no doubt that the plaintiff’s care through Westmead has been, up to date, and continues to be, of the highest quality and in his best interests. However, the extent and multiplicity of his injuries is such as to justify a service of the kind propounded by Dr Buckley. I propose to allow the amount claimed.

143 In due course I will enter a verdict and judgment in favour of the plaintiff against each defendant. In the meantime, I direct the parties to bring in short minutes of orders reflecting the findings I have made. To the extent that any matters remain outstanding, and cannot be resolved by agreement, the parties have liberty to apply, and to re list the matter by arrangement with my associate.

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Last Modified: 07/16/2007