Sanders v Multiplex Engineering and Infrastructure Pty Ltd
[2022] WADC 31
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: SANDERS -v- MULTIPLEX ENGINEERING & INFRASTRUCTURE PTY LTD [2022] WADC 31
CORAM: SWEENEY DCJ
HEARD: 12-15 OCTOBER 2020
DELIVERED : 7 APRIL 2022
FILE NO/S: CIV 963 of 2019
BETWEEN: STEVEN KARL SANDERS
Plaintiff
AND
MULTIPLEX ENGINEERING & INFRASTRUCTURE PTY LTD
First Defendant
MULTIPLEX AUSTRALASIA PTY LTD
Second Defendant
Catchwords:
Negligence - Occupiers' liability - Duty of care of principal contractor - Safe system of work
Legislation:
Civil Liability Act 2002 (WA)
Occupational Safety and Health Act 1984 (WA), s 19, s 21, s 21B, s 22, s 23D
Occupiers' Liability Act 1985 (WA), s 5
Result:
Plaintiff's case against both defendants dismissed
Representation:
Counsel:
| Plaintiff | : | Mr B G Bradley |
| First Defendant | : | Mr G P Bourhill SC |
| Second Defendant | : | Mr G P Bourhill SC |
Solicitors:
| Plaintiff | : | Bradley Bayly Legal (Perth) |
| First Defendant | : | Clyde & Co (Perth Office) |
| Second Defendant | : | Clyde & Co (Perth Office) |
Case(s) referred to in decision(s):
Bennett v Minister of Community Welfare [1992] HCA 27; (1992) 176 CLR 408
CGU Insurance Ltd v Coote (by his Next Friend Stephen Desmond Coote) [2018] WASCA 117
Hamersley Iron Pty Ltd v Robertson (Unreported, WASC, Library No 980573, 2 October 1998)
Husher v Husher [1999] HCA 47; (1999) 197 CLR 138
J-Corp Pty Ltd v Thompson [2019] WASCA 173
Jones v Dunkel (1959) 101 CLR 298
Jongen v CSR Ltd (1992) Aust Torts Rep 81-192
Laing O'Rourke (BMC) Pty Ltd v Kirwin [2011] WASCA 117
Leighton Contractors Pty Ltd v Fox [2009] HCA 35; (2009) 240 CLR 1
March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506
Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1
Multiplex Constructions (NSW) Pty Ltd v Lopez [2004] NSWCA 319
Nikolich v Webb [2020] WASCA 169
Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1; (1986) 160 CLR 16
Voli v Inglewood Shire Council [1963] HCA 15; (1963) 110 CLR 74
Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40
Table of Contents
Introduction
The accident
Evidence of Matthew Ryan, steel rigger, formerly of OSE
The key issue: was the plaintiff instructed to remove the purlins?
Evidence of the plaintiff about the content of the conversation
Evidence of Mr Stanbrook and Mr Bracewell denying the conversation
Evidence about other potential witnesses to the alleged conversation
The plaintiff's evidence about what time the conversation occurred
Evidence of Michael Stanbrook, senior site supervisor of the second defendant about the events of that morning
Evidence of John Bracewell, formerly of NeoWest, about the events of that morning
The Incident Notification Form
Other documentary evidence bearing on the alleged conversation
Findings about the alleged instruction to remove the purlins
Second key issue: safe system of work - pleadings and legal principles
Identification of the 'risk of harm'
Foreseeability
The contractual documents
The safe system of work said to have been in place
Evidence of Matthew Ryan of OSE as to any system in place for the removal of purlins
Evidence of John Bracewell of NeoWest as to any system in place for the removal of purlins
Evidence of Michael Stanbrook as to any system in place for the removal of purlins
Evidence of the plaintiff as to any system in place for the removal of purlins
Factual findings about the system in place for the removal of purlins, and what the plaintiff knew
Conclusions about liability for breach of common law duty of care
Alleged liability for breach of the Occupiers Liability Act, and findings
Alleged liability for breach of s 23D of the Occupational Safety and Health Act, and findings
Alleged liability for breach of s 21B of the Occupational Safety and Health Act, and findings
Alleged liability for breach of s 21 of the Occupational Safety and Health Act, and findings
Alleged liability for breach of s 22 of the Occupational Safety and Health Act, and findings
Conclusion in relation to the case against the first defendant
Alleged liability of the second defendant
Conclusion in relation to the case against the second defendant
Causation
The injury
Evidence as to reduced work capacity
Assessment of damages
Past loss of earnings
Interest on past loss of earnings
Past loss of superannuation
Interest on past loss of superannuation
Past special damages
Future loss of earning capacity
Future loss of superannuation benefits
Future services
General damages
Contributory negligence on the part of the plaintiff
SWEENEY DCJ:
Introduction
During October 2016 the plaintiff, Mr Sanders, was one of about 80 bricklayers employed by NeoWest Building Co Ltd (NeoWest) working on the Perth Stadium construction project. On the morning of 6 October 2016, he suffered an injury to his left arm when he singlehandedly began the process of removing two overhead steel purlins that were in the way of his laying one of the walls to a toilet block. One of the purlins struck him on the arm, and his left biceps tendon - where it adjoined the bone around the elbow - was torn through, a serious injury which eventually ended his ability to work as a bricklayer.
It was his case that he only tried to remove the purlins because, minutes before, he had been instructed to do so by his own supervisor, John Bracewell of NeoWest, and by one of the Multiplex supervisors, Michael Stanford.
The first defendant, Multiplex Engineering & Infrastructure Pty Ltd, known then as Brookfield Multiplex Engineering & Infrastructure Pty Ltd, was the principal contractor for the construction. It occupied the building site and had overall management of the project. It had engaged NeoWest and numerous other contractors. On one estimate, on an average sort of day there were about 500 tradespeople working on constructing the stadium and, at peak, that number grew to maybe 1000, working on a project worth in the area of $1.2 billion. NeoWest was the sole bricklaying company on the project, responsible for the block work. Mr Bracewell was employed by NeoWest as its head foreman. NeoWest was not a defendant in the action.
The first defendant had also engaged the second defendant, Multiplex Australasia Pty Ltd, to provide the overall supervision of the construction of the project. Mr Stanford was employed by the second defendant as one of its senior supervisors, supervising the block work contract.
It was the case for both defendants that no instruction was given to the plaintiff to remove the purlins himself, and nor would such an instruction have been given, as purlins fell outside NeoWest's scope of works and the plaintiff was not qualified to remove them, unlike the steel riggers who were on‑site. Both Mr Bracewell and Mr Stanford denied that any conversation had occurred. They denied they were even at the toilet block that morning. It was the defendants' case that the plaintiff made a unilateral decision to attempt to remove the purlins himself, and was negligent in so doing, causing his own injury.
The first and critical factual issue to be determined, therefore, was whether the conversation as alleged between the plaintiff and Messrs Bracewell and Stanbrook had occurred at all. There was no question of the plaintiff having mistaken the identity of the men to whom he had allegedly spoken. The plaintiff bore the onus of proving the alleged instruction on the balance of probabilities and the proof turned upon his credibility and that of Messrs Bracewell and Stanbrook. For the reasons which are detailed below, I found against the plaintiff on credibility, so a substantial part of his case was not established.
The plaintiff had a fall-back position: it was his case that, even if he had not been instructed to remove the purlins, it was foreseeable that a blocklayer would, on encountering an obstructing purlin, take steps to remove it so that he could get on with his job. The plaintiff argued that neither defendant had established a system of work to ensure the timely removal of the purlins by the steel riggers on‑site, prior to the plaintiff ever being faced with such an obstruction, therefore heading off his potential decision to remove the purlins himself. Therefore, the plaintiff claimed, the accident was still caused by both defendants' negligence and breach of their statutory duties. The defendants argued that a safe system of work was in place, and that they had taken what reasonable steps should have been taken on their part to deal with such an issue. They also pleaded contributory negligence against the plaintiff.
Again, for the reasons which are detailed below, the plaintiff has failed to establish his case against either defendant.
The accident
Although both the fact of the accident and how it occurred ‑ as opposed to why the plaintiff tried to remove the purlins - were uncontroversial at trial, the details of how it occurred were important to both sides of the action.
The plaintiff was the leading hand of his team of blocklayers employed by NeoWest. On the afternoon of 5 October 2016 - the day prior to the accident - he and his team were laying the walls for one of the many toilet blocks located along the internal perimeter thoroughfare of the stadium. The team was laying each wall from the side which represented its 'face' - the side the public would see as they approached or walked past the toilet block in the thoroughfare - to ensure a good smooth appearance. By knock-off time, the team had laid about nine courses of blocks. From that point on, scaffolding would have been required in order to lay the upper portion of each wall.
At some stage and by knock-off time, the plaintiff had noticed two steel purlins overhead. The purlins, which could be cladded with other materials, were there for the purpose of supporting the ceiling for the finished toilet blocks running along the perimeter. He judged that, once he was standing on a scaffold, the purlins would be in the way of where his head and upper body would be. The two purlins were bolted together lengthwise to cleats (metal brackets) to make one continuous length of steel beam, and they were positioned just forward of the wall that he was constructing. They were not in the way of the wall as such, even at its full projected height, but they were in the way of where he needed to be to lay the wall from the face side.
The plaintiff decided that, when he and his team resumed work in the morning, he would have to erect his scaffold on the inside of the toilet block wall, and finish laying the wall from that side instead of the usual face side because, from that position, the purlins presented no obstacle to him standing on his scaffold.
It was his case that, early the next morning, 6 October 2016, he and his team had commenced working and he had erected that scaffold on the inside of the wall and was in the process of being handed blocks by his labourer to put on the scaffold to be ready to lay, when his own supervisor, Mr Bracewell, and Mr Stanbrook of the second defendant, approached him and spoke to him.
As pleaded, it was his case that Mr Bracewell, in the presence of Mr Stanbrook, directed the plaintiff to remove the bolts affixing each purlin to the cleats and then to get assistance from his workmates to lower the purlins, and that Mr Stanbrook informed the plaintiff that that method had previously been used at the stadium. The details of that alleged conversation will be covered later. The plaintiff alleged that, after Messrs Bracewell and Stanbrook had moved on, he then set out to do as he had just been instructed.
He estimated the two purlins to weigh about 60 kg each, a combined weight of 120 kg. He dragged an A-frame scaffold a bit closer to the right-hand end of the purlin on the right as he faced it and then, while standing on that scaffold, alone, proceeded with a spanner to remove, firstly, the lower of the two bolts affixing that purlin to the cleat and then to loosen the higher bolt. He then shifted to the centre cleat, where both purlins were bolted together to the same cleat, and removed the nut from the top bolt and unwound the nut to the bottom bolt to its last thread. He then put both his hands out in front of him at chest height with elbows bent, lifting slightly upwards under the two adjoining ends of the purlins to 'feel for its weight' and to see 'if it had any give', whereupon there was a massive bang.
Unbeknownst to him, those purlins had been installed under tension, because the pre-drilled holes in the purlins had been forcibly aligned with the drilled holes in the cleats. It was not suggested that that was either uncommon, or inappropriate, in the installation of purlins. Once loosed from the restraint of the secure bolts and nuts that had held them both together and to the cleats, and once lifted by the plaintiff at the join to check for any 'give', the purlins sprung suddenly apart, the right‑hand purlin collapsing onto his left arm. He dropped the purlin straight down onto the scaffold, experiencing immediate and severe pain to his left arm. The left purlin also freed itself from its loosened fixings and was left hanging down in the middle where the two purlins had met - but held fast at its far-left edge which he had not yet interfered with.
While it may be accepted, despite his considerable experience in construction, that the plaintiff was unaware that the purlins had, or might possibly have had, tension in them, the plaintiff testified that he was aware, when he attempted to remove the purlins, that he was dealing with two purlins which joined in the centre. And what he certainly did know at the time was that he was single-handedly and progressively removing and loosening the fixings that were holding two steel purlins, estimated by him to each weigh 60 kg, in their position overhead, with his own hands underneath those purlins and, it follows, the rest of his body in proximity, while standing on a scaffold.
Before turning to the matters in dispute, I will mention the uncontroversial evidence of Matthew Ryan, steel rigger, about stored energy and the correct way to remove purlins.
Evidence of Matthew Ryan, steel rigger, formerly of OSE
At the time of giving evidence, Mr Ryan was employed by 'Multiplex', a reference I assume to one of the defendants. At the time of the accident, he was employed by Onsite Engineering (OSE) at the Perth Stadium as a leading hand rigger. OSE subcontracted to Cays Engineering (Cays), which had the purlin contract for the Perth Stadium. Cays fabricated the steel off-site, then delivered it to site, where OSE erected it. He said OSE had anywhere up to 10 or 12 workers employed full-time at the stadium.
Mr Ryan explained that a rigger is somebody who erects structural steel, which constitutes the skeleton of most buildings, using a crane and different rigging techniques to sling the steel up into the air and then bolt the connections together. Becoming a rigger involves acquiring a dogger's ticket, followed by an intermediate rigger's ticket, followed by an advanced rigger's ticket. He also explained that secondary steel items, including purlins, are not part of the structural integrity of the building, but are part of the framework, and are often used to form a frame around the structural steel, to which roof sheets or cladding can then be affixed. He said purlins are used in the construction of toilet blocks and food shops and the like and, similarly, cranes and rigging techniques are required for their erection.
Mr Ryan explained that a purlin can acquire stored energy in installation when the holes in the purlin do not align exactly to the corresponding holes through which it is to be bolted in place - he said sometimes they may be a millimetre or two out - and a long pointed tool, known in the trade as a 'podgie', is inserted into the two almost corresponding holes and used to forcibly line them up so that the bolts can be inserted. As to then removing a purlin, he explained that a rigger will remove only one of the bolts at one end, then insert a podgie into that empty hole to substitute for the removed bolt, then release the remaining bolt, then slowly release the stored energy by pulling the podgie across, which is a controlled method of slowly releasing the stored energy. He explained that, if a purlin has stored energy in it (by reason of having been installed as above) and is removed without the use of a podgie, it can suddenly pop away and/or drop.
Of course, Mr Ryan is not an engineer but gave evidence based on his experience and training, and his evidence was uncontroversial. The science behind stored energy was not required for the purposes of the trial - just the practical implications of it.
He said, in addition, riggers removing a purlin work in a team of two, one at each end standing on a scissor-lift elevated platform. He said the platforms are also utilised to take the weight of the purlin underneath and the removed purlin can then be lowered by means of the platforms. He said that was the only way he would ever remove a purlin.
What occurred to the plaintiff amply demonstrates why riggers follow such methods. Mr Ryan was not cross-examined. His practical expertise was demonstrated; his evidence was logical and informed, and I accept it.
The key issue: was the plaintiff instructed to remove the purlins?
The critical question was why the plaintiff tried to remove those purlins as he did. It seems extraordinary that a blocklayer, working at an enormous construction project with hundreds of other tradespeople, would simply take it upon himself to single-handedly commence the removal of two overhead purlins, with a combined weight of about 120 kg. But it seems equally, if not more, extraordinary that any senior supervisor, working on a $1.2 billion project involving 500 tradespeople on any given day would instruct, or acquiesce in the instruction of, a blocklayer to remove two heavy overhead steel purlins by undoing the bolts and then getting a mate to help him get them down, when there were qualified steel riggers on-site. And yet, one of those scenarios occurred.
The factual disputes about the alleged instruction and any system of work which was in place to deal with such a situation are so critical, that it is appropriate to determine the factual scenario prior to examining the applicable legal principles. I turn first to the alleged conversation and the evidence of the plaintiff, Mr Bracewell of NeoWest (called by the defendants) and Mr Stanford of the second defendant.
Evidence of the plaintiff about the content of the conversation
The plaintiff testified that he had been working as a casual at NeoWest since 2016 (his second stint with them), working first on the Crown Towers construction project and then at the Perth Stadium. He had been working as a standard blocklayer but when Mr Bracewell, who was a leading hand with NeoWest, went on leave in June/July 2016, the plaintiff had then been given the opportunity to run his own team, in charge of 23 people. When Mr Bracewell came back from leave he was made full-time head foreman, and so the plaintiff remained in charge of a team of an unspecified number.
The plaintiff said he would sometimes see Mr Bracewell at the crib room at the stadium in the morning. The evidence was that there was an area outside the stadium comprising the crib room, the nursing post, the canteen and other rooms, referred to by one witness as the 'subbies camp', where workers would arrive in the morning before making their way to the construction site, which was within walking distance. The plaintiff said that he and Mr Bracewell had no set habit of meeting in the crib room of a morning, but there was an opportunity to have a discussion there, if need be.
But he said that, every morning, he saw Mr Bracewell and Mr Stanbrook, a senior site supervisor of the second defendant, as they walked around together at the construction site and had discussions and inspected the blockworks. He said they used to come past and have discussions or ask 'is everything OK?' and then they would move on.
He testified that he began laying the walls for the toilet blocks at the stadium three to four days prior to the morning of the accident. He agreed that it was in the afternoon of the day before the accident that it became apparent to him that the two overhead purlins were going to obstruct his ability to build the wall, but not if he erected his scaffolding inside the toilet block instead and laid the brick wall from that side.
He said that he had not received any form of instructions or guidelines from his employer, NeoWest, as to how to deal with purlins generally if they were obstructing the brickworks. There is no suggestion he had asked for any instructions, or that he had any private conversation with NeoWest's foreman, Mr Bracewell, about those (or any) purlins that afternoon or overnight.
The plaintiff testified that he started work on 6 October 2016, the day of the accident, at about 6.00 am - 6.30 am. He said he usually got to work before the rest of his team. He testified that he normally worked an 8 ½ hour day, knocking off around 3.00 pm each day. Working backwards, that would suggest a 6.30 am start. He said that, with the help of one of his labourers, he erected a scaffold on the inside of the wall he was constructing and was standing on that scaffold, facing towards the wall and therefore facing the middle of the stadium. Unfortunately, the photographs of the accident site taken some time post-accident are quite dark and any scaffolding on the inside of the wall cannot be made out, if it was there.
The plaintiff said he was on his scaffold and his labourer had been handing him blocks which he had placed onto the scaffold in readiness, but had not yet begun laying, when he was approached by Messrs Bracewell and Stanbrook, who came from his right and stood on the outside of the wall, on the other side to him, looking up at him.
He said he greeted them and said: 'I'm building the wall on this side because there's a purlin and too many obstructions on the face side'. He said Mr Bracewell replied: 'You need to do it from this side of the wall (indicating the face side of the wall) because you're going to get a better finish and we don't want Multis to make us take it down if it's not up to standard'. He said Mr Bracewell then turned around to Mr Stanbrook and said: 'We moved one the other day, didn't we, Mick?' to which Mr Stanbrook nodded and replied: 'Yes'. The plaintiff testified that, after that, Mr Bracewell said 'The best thing you could do is remove the bolts and then get someone to give you a hand to take off the purlins because we want you to build it from this side, the face side'. The plaintiff said they then walked off together to his left, continuing along the thoroughfare. On that account, Mr Bracewell set out the method for removing the purlins and Mr Stanbrook said nothing following that.
In cross-examination, the plaintiff confirmed his evidence that Mr Bracewell had said 'We moved one like that the other day, didn't we Mick?'. He said neither of them had given him any indication as to what he might expect when he unbolted the purlin. He agreed they told him it had been done before. In answer to the proposition that Mr Stanbrook was not there when he made the decision to take the purlin off, the plaintiff responded 'he was definitely there. 100%' and 'he knew what I was instructed to do'.
The plaintiff was also cross‑examined about a paragraph in his statement of claim which reads:
Bracewell in the presence of Stanbrook directed the plaintiff to remove the bolts which connected each purlin to the cleats and to get assistance from his workmates to lower the purlins … Stanbrook informed the plaintiff that this method of moving the purlins had previously been used at the construction site.
The logic of cross-examining upon the content of a pleading rests, of course, upon the premise that the author of the pleading drafted the document in accordance with his instructions from the client. When asked if the statement of claim was incorrect, the plaintiff responded, referring to Mr Stanbrook: 'he agreed with John Bracewell … he was standing right next to John …'. When further pressed and asked what it was that Mr Stanbrook had said that had given rise to that pleading, the plaintiff said: 'he didn't say anything to me' and agreed that he thought that the statement of claim was incorrect.
Of course, the reference in the statement of claim might represent a lack of precision on the part of the draftsman of the statement of claim, which has not the status of a witness statement declared by the plaintiff to be the truth. But the inconsistency with the pleading was not just a misattribution of the information that this method of removing purlins had been used previously. On the plaintiff's initial account in evidence, Mr Stanbrook at best agreed that a purlin had been moved and then stood there while Mr Bracewell detailed the method to be used. In fact, the plaintiff's initial account of the conversation implied that Mr Bracewell had suggested a block wall had been removed for sub‑standard work, which was clarified in cross‑examination, but came about because the plaintiff had clearly missed something in his account. On any interpretation of his evidence, it was Mr Bracewell who was said to have specified the method of removing the purlins. At best, what Mr Stanbrook nodded to and agreed with was the proposition that a purlin had been taken down previously, and it was only after that that Mr Bracewell specified the method to be used.
Now that altered sequence in the conversation would make no difference to the proposition that Mr Stanbrook had acquiesced in and supported that alleged instruction, had it been given and had he been there. But what I was considering here was the credibility of the evidence that the instruction was given.
Given that NeoWest was not a defendant in the action and much depended upon what Mr Stanbrook of the second defendant either said or impliedly agreed to, one might have expected some close attention to the detail of who said what, and in what sequence, when drafting the pleadings.
Of course, testifying as to the precise wording and sequence of a conversation four years on is likely to represent a challenge to any honest witness. All a witness might be able to say with any certainty is that he knows that one of them gave him certain information by reference only to the gist of what was said, to which the other indicated agreement by some means. The plaintiff's testimony, however, was very detailed, purporting to give actual words used, not just the gist of what was said, and attributing comments to both men, not just broadly recounting what was said between the two of them. Any witness claiming to recall precise words, sequence and speaker four years on may very well be reconstructing, innocently or deliberately.
The aspect of the plainitff's evidence about the alleged instruction which stood out was that Mr Bracewell allegedly told him to 'remove the bolts and then get someone to give you a hand to take off the purlins …'. That is consistent with the pleading to the effect that Mr Bracewell instructed him to 'remove the bolts … and to get assistance from his workmates to lower the purlins', both reflecting what the plaintiff actually did - namely remove the bolts single-handedly, without calling upon any assistance from his workmates who were, on his account, present, notwithstanding the estimated weight of the purlins.
Evidence of Mr Stanbrook and Mr Bracewell denying the conversation
It was implicit in Mr Stanbrook's evidence-in-chief that he took no part in any conversation with the plaintiff and Mr Bracewell at the toilet block in the stadium prior to the accident. In cross-examination, it was put to him that 'it wouldn't be a good look, would it, if between you and Mr Bracewell, in effect, told the plaintiff to - to take the spanner to the bolts and remove them from the purlin?', to which Mr Stanbrook responded: 'It wouldn't have happened'. When asked if he denied the conversation, he said: 'Absolutely'.
Mr Bracewell testified that he could not recall whether he had seen the plaintiff at all that morning at the subbies camp, prior to the accident, but denied any discussion with the plaintiff at the toilet block that morning. He denied having instructed the plaintiff to move his scaffold or remove the purlins. He denied any reference by him and Mr Stanbrook to having done something similar a few days before. He did not recall any other occasion at the stadium on which a purlin had interfered with the block work.
Evidence about other potential witnesses to the alleged conversation
The plaintiff agreed that, in April 2020, he had drawn a plan of the site, indicating where Messrs Bracewell and Stanbrook and each member of his team were at the time of the alleged conversation. He had depicted both Mr Bracewell and Mr Stanbrook as being pretty much directly opposite him, on the other side of the wall he was laying. His sketch indicates that a labourer by the name of Roy Hogan was on the same side of the wall as them, but not directly next to them and more to the plaintiff's right. He depicted three other team members, all blocklayers, as being up on scaffolds and laying blocks on a wall perpendicular to the wall in question and further away from Messrs Bracewell and Stanbrook and Mr Hogan. If the alleged conversation occurred, one would have expected at least Mr Hogan to have been aware of the presence of Messrs Bracewell and Stanbrook at the toilet block that morning before the accident.
When cross-examined about the presence of Mr Hogan during the exchange, the plaintiff said that Mr Hogan was there, but that he was a very busy worker and, at the time of the conversation, would have just been scooting around doing his own thing. He agreed, however, that Mr Hogan would have at least seen Messrs Stanbrook and Bracewell at that time. Given that the conversation, and their presence, was entirely denied, and was pleaded as such in the defence from the outset, Mr Hogan is a witness who could be expected to have been able to give relevant evidence. Although four years have passed, the conversation was said to have occurred only minutes prior to the accident itself, which was surely memorable to some extent at least, and he might well have had something relevant to contribute.
And, significantly, although he might not have been listening to the conversation, if the plaintiff's account was correct then it cannot have escaped Mr Hogan that morning that, after Messrs Bracewell and Stanbrook dropped by, his work in stacking those blocks on the scaffold on the interior wall of the toilet block had been wasted, because that idea had been abandoned in favour of removing the purlins and shifting the scaffold to the other side of the wall.
It just seems so unlikely that Mr Hogan would have known nothing of any such conversation, had it occurred. And given that Mr Hogan's supervisor, the plaintiff, was seriously injured straight afterwards, one might have expected some discussion between the plaintiff and his team as to why he had attempted such a thing. Evidence rebutting a suggestion of recent invention on the part of the plaintiff, which arose from the investigation report completed following the accident, would have been admissible and significant.
None of the plaintiff's team were called to testify. The plaintiff agreed that he had known his team reasonably well. He was cross‑examined about what steps he had taken to find any of them for the purposes of the trial:
I just want to establish that when you drew that you obviously remembered the names of all of the men that you worked with at that - on that site? --- That's correct.
Do you still associate with any of those men? Do you still see them or talk to them? --- No, I don't.
Do you know where they are? --- I don't know. I know they hang around with John Bracewell, but I don't know where they are, really.
Have you tried to find them? --- I have tried to find them.
When? --- Maybe a few months ago, not for my own personal - not for me to talk to them.
….
What attempts did you make to find them? --- I had a friend of mine - I - I asked him if he had their whereabouts or phone numbers.
And what did he say? --- He said he'll look into it for me.
Did he? --- I think he did, yes.
Did he give you any information? --- Yes, he gave me a couple of phone numbers.
Did you ring those people? --- No.
There was no re-examination on the point.
The plaintiff's evidence about what time the conversation occurred
The timing of the alleged conversation matters. It was pleaded to have occurred at about 6.45 am. The defendants' case placed significant reliance upon the accident having occurred at 7.15 am at the latest, or earlier, a time at which the defendants argued that Messrs Stanbrook and Bracewell would not yet have arrived at that location for their morning inspection, denying any opportunity for conversation. The basis for that 7.15 am time was an Incident Notification form completed by the first aid officer, Mr Gonzales, signed by the plaintiff, noting that the accident was reported to him at 7.20 am, and had occurred at 7.15 am - more of that later.
The plaintiff testified that he had arrived at work, he thought, between 6.00 am - 6.30 am, entered the worksite through a turnstile, then entered the crib rooms. He would tend to only stay for a couple of minutes (unless he got a sandwich), just dropping his bags and lunch off in the crib room and grabbing a quick coffee to take with him, before making the walk to where he was going to be working: on that day, level 1 of the stadium where he was building the toilet block.He thought that to have been a walk of about 10 - 15 minutes. Mr Stanbrook thought the walk from the subbies camp to the stadium was only a five-minute walk - the difference may well lie, however, in the additional time taken to get to level 1 and that particular toilet block.
The plaintiff said he then erected the scaffolding on the inside of the wall, which he thought took maybe 20 minutes then, after that, blocks were being loaded onto that scaffolding for about 15 minutes before Messrs Bracewell and Stanbrook came along. He thought that conversation occurred around 6.45 am, although his time estimates would suggest the conversation should have occurred maybe 50 ‑ 55 minutes after he arrived at the crib room, giving a range of 6.50 am ‑ 7.25 am.
It was suggested to the plaintiff, however, that he could not have physically gained access to the stadium before 6.30 am, because the turnstiles were not open before that. He seemed puzzled by that line of questioning and said that, if the turnstiles had not been working, he would have gone in through the security area. When counsel persisted, the plaintiff half‑heartedly agreed that that might have been the case. It emerged from Mr Stanbrook's later evidence, however, that the turnstiles were at the entrance to the 'subbies camp' to which the tradesmen could arrive earlier than 6.30 am, explaining the plaintiff's puzzlement. But Mr Stanbrook said they could not start work at the stadium before 6.30 am without an 'out of hours permit'. I accept that evidence, as it seems unlikely that such a large project would not, from a safety and supervision point of view, have had defined hours and a 6.30 am start was consistent with the plaintiff knocking off at 3.00 pm having worked an 8 ½ hour day. Mr Stanbrook's evidence suggested the 6.30 am start was calculated from when they left the subbies camp to make the walk which, again, is in keeping with a defined earliest start time, but the questioning did not pin that down.
There was obviously a lot of room in the plaintiff's estimates of time. His timeframes in his testimony were unlikely to have been based on actual memory four years on and were far more likely to have been based on his experience of those tasks. They should have had a reasonable degree of broad accuracy, but still many people underestimate the time it takes to do things. But as 6.30 am was the earliest start time on‑site, and he liked to turn up early, and if his estimates as to the time taken in erecting the scaffold and loading blocks onto it were accurate, then the alleged conversation could have taken place as early as 7.05 am. His estimate of 6.45 am, 15 minutes after commencement, was far too tight to allow for the construction of scaffolding and being handed blocks by his labourer.
If the plaintiff's estimate of the walk was correct, however, and the tradesmen could only leave the crib room at 6.30 am as Mr Stanbrook's evidence suggested, that makes 7.15 am to 7.20 am the earliest opportunity for the alleged conversation to have occurred.
The plaintiff testified that, following the accident and once he had taken a minute to calm down a little bit, he called Mr Bracewell on the two-way radio and told him 'you need to come back here because we've got a problem'. He said Mr Bracewell told him that he was busy and asked if it could wait, but the plaintiff impressed upon him that it was serious and that he needed to come back immediately. The plaintiff testified that he waited about five minutes before deciding he needed to go to the nursing post which was back outside the stadium near the crib rooms and canteen. He said that he encountered Messrs Bracewell and Stanbrook on the way as they were coming back to the toilet block area and told them briefly what had happened and that he was heading to the nurse's quarters. The plaintiff said, from there, it was a 5 to 10 minutes' walk to the first aid area where he was seen there by the 'head safety guy who was on nurse duty, Enrique (from) Multiplex'. Those timeframes are consistent with the full walk from the toilet block taking 10 to 15 minutes.
On his evidence then, between the alleged first conversation with Messrs Bracewell and Stanbrook and ultimately making it to the nursing post, the plaintiff had got down from the scaffold he had been standing on during the conversation, dragged an A-frame scaffold over to the right-hand end of the purlin and climbed onto it, removed a bolt (a sizeable bolt from the photographs) and loosened another, then shifted to the point where the purlins joined, removed a nut from one bolt and all but removed the nut from the second bolt, lifted the purlins a bit to test their weight, suffered a serious injury and had to take a minute to calm down a bit, called Mr Bracewell and spoke to him and asked him to come back, waited at the scene for five minutes before giving up and starting to head to the nurse's post - a 10 to 15 minutes' walk - came across Messrs Bracewell and Stanbrook on the way and spoke to them briefly - then continued on his way to the nursing post. If the walk was a 10 to 15 minute walk in all, then surely 20 to 25 minutes is the bare minimum one can allow for those events, and the conversation must have occurred at least 20 to 25 minutes prior to his arrival at the nursing post. The plaintiff testified that, after he had been at the nursing post for about 10 minutes, Messrs Bracewell and Stanbrook came in, but he had no discussion with them.
Evidence of Michael Stanbrook, senior site supervisor of the second defendant about the events of that morning
Mr Stanbrook would now be 41 years old and is a carpenter by trade. As at the time of trial, he had 15 years' experience as a senior site supervisor and had been working in a main contractor supervisory role since 2011. In October 2016, he was employed in that capacity by the second defendant and remained employed by the second defendant. He became involved in the Perth Stadium construction project in late 2015, as one of four, possibly five, senior site supervisors involved in the overall project, supervising different aspects of the project and different trades. He had some small involvement in the groundworks, following which it was his responsibility 'to look after the whole of the blockwork contract' from its commencement. Clearly that was an important role, involving a significant degree of supervision and responsibility. He referred to NeoWest as a 'very good easy-going contractor', indicating he would very rarely have any need to refer to the contract.
Mr Stanbrook was asked about the hours of work at the stadium and his usual practice of doing his daily rounds with Mr Bracewell to inspect the work. He described the 'subbie camp' outside the stadium. He said the workers reached the stadium via a tunnel and estimated that walk to take about five minutes, as opposed to the plaintiff's estimate of 10 to 15 minutes but, as mentioned earlier, he was estimating the time to the stadium, not any particular location within the stadium.
He explained that work hours inside the stadium were 6.30 am - 5.30 pm, unless a worker had an out of hours permit. He said the workers could arrive at the subbie camp earlier than 6.30 am but could not start work at the stadium earlier than 6.30 am. He was not asked whether they could only leave the subbie camp at 6.30 am, or could only make it on-site by 6.30 am, but his evidence that 'work would start at 6.30. The tradesmen would leave the camp to go the stadium …' implied the former, but not much turned on the 5 minutes, either way. That evidence by Mr Stanbrook was unchallenged and, as mentioned earlier, I accept it, as it makes sense from a safety and supervision point of view that such a large worksite would have defined hours and was also consistent with the plaintiff's 8 ½ hour day ending around 3.00 pm.
Mr Stanbrook testified that his usual practice had been to arrive at his office anywhere between 6.00 am to 6.15 am at the latest and implied, without being directly asked, that it was in the same vicinity as the subbie camp. He had the plan desk in his office. He said it was his usual course to turn his computer on, make a coffee, go through his emails, and look through the drawings. Then, normally somewhere between 6.30 am and 6.45 am (Mr Bracewell placed it later, around 7.00 am) he would meet with Mr Bracewell of NeoWest to discuss where the blocklayers were working that day and discuss any design changes that had been made. He said they would then leave his office and probably get on-site by around 7.00 am to 7.15 am, unless he had a meeting of some sort which delayed that.
Once on-site, he said, he and Mr Bracewell would
walk the levels and by which I mean we would walk every level fully. Five levels at the stadium. We would start at event level, which is ground-level. That had the most square metres of block work upon that contract so we would always go there first. And then we'd head up to level 1, level 2, level 3, level 4, level 5.
He testified that they would spend, on average, half an hour at event level. By implication, then, on a typical morning they would not have reached level 1, the level on which the accident occurred, prior to around 7.30 am if they had arrived at 7.00 am, or up to 7.45 am if they had left around 7.15 am and, on a morning where he had been delayed by a meeting, the commencement of their rounds would be later. Of course, his evidence was only general but tended to suggest that, on any given day, he and Mr Bracewell were unlikely to have made it to the toilet block before 7.30 am, and could well have arrived later, around 7.45 am, and even later on some days. If the accident did occur at 7.15 am and not a bit earlier then, on Mr Stanbrook's evidence that he was not yet ready to go to the stadium, they were running a bit late to start rounds that day.
But had they started their rounds on time that morning then, on Mr Stanbrook's evidence, they would not have made it to level 1 until at least 7.30 am, and possibly more like 7.45 am, that entire timeframe being after the 7.20 am recorded time for the plaintiff having reported to the first aid area, and very much after the plaintiff's estimate that the conversation occurred about 6.45 am.
Mr Stanbrook testified that he became aware that the plaintiff had been injured when he received a phone call from Mr Gonzalez, the first aid officer, informing him that there had been an incident on level 1 and asking him to attend the first aid shed. He testified that he was still in his office at that time, having not yet started walking the levels on‑site with Mr Bracewell. He said the office was full of people and he was not with Mr Bracewell when he received the phone call. He said he recalls it as having been early in the morning that he received the call from Mr Gonzales, still being in his office at the drawing table and not having a stitch of personal protective equipment on yet, and having thought 'Jesus, that's early'.
Mr Gonzalez wrote in the Incident Notification form that the accident was reported at 7.20 am, and had occurred at 7.15 am. If the accident did occur at 7.15 am then, on Mr Stanbrook's estimates, on a typical day he should by then have met with Mr Bracewell at the subbies camp and either have been on‑site for 15 minutes, still inspecting the event level, or have just arrived on‑site at about the same time as the accident and not yet commenced inspections. Mr Stanbrook said he did not recall anything about that day, 6 October 2016, which meant he had planned to start walking the level a bit later than usual, but then he was testifying some four years after the event.
Four years on, an honest witness could easily be wrong about the precise time he was told of an incident. He said he was first asked to turn his mind to recalling the events of that day sometime in 2018. But where he was when told of the accident, and his reaction to the news, is likely to have been rather more memorable, particularly the former. His evidence on that point was emphatic: he said he is 100% definite that he had not yet commenced walking the levels with Mr Bracewell and was not even ready to walk across to the stadium to begin rounds. He also testified that he was not with Mr Bracewell when he received the call from Mr Gonzalez. It was implicit in his evidence, if not spelt out, that he had not yet met with Mr Bracewell.
He said that the first thing he did, on hearing the news, was phone Mr Bracewell straightaway. He said he met Mr Bracewell at the first aid room where he saw the plaintiff, clutching his arm and receiving treatment. He recalled speaking to the plaintiff and Mr Bracewell about what had happened, and said he stayed there until the project manager from NeoWest, Mr Murray Stitt, arrived.
It was implicit in Mr Stanbrook's evidence-in-chief that he denied the alleged conversation.It was also implicit in his evidence that he and Mr Bracewell did not come across the plaintiff, post-accident, on his way to the nursing post and speak to him.
In cross-examination Mr Stanbrook said that there would have been occasions 'where we'd have taken purlins down before'. The point of the cross-examination was to seize on the similarity of expression in the plaintiff's account of the alleged instruction, to the effect that Mr Bracewell was said to have said 'we moved one the other day, didn't we, Mick?' and to which Mr Stanbrook was said to have nodded and replied 'yes'. Mr Stanbrook clarified that the riggers would have taken them down before and said he had used 'we' in the context of referring to a team, meaning everyone engaged in the construction. I did not place any weight on that casual manner of speaking. All I drew from that evidence was that he recalled there had been purlins taken down previously. He said that those purlins were not the first purlins that had needed to be taken down and, as will emerge later, I accepted his evidence that purlins had been taken down previously.
Mr Stanbrook conceded that there would have been occasions when he entered the stadium prior to 7.00 am citing, by way of example, a situation where heavy rain had flooded the stadium and he and the other supervisors would be required to do a safety walk prior to any tradespeople entering the site. It was suggested that there may have been other reasons to start the walk earlier if, for example, a problem had emerged that needed addressing. Mr Stanbrook said that, in normal circumstances, there would not be any such problem emerging earlier than 7.00 am 'because the guys would have only just been setting up and starting early works'. That also sits well with his recollection of thinking, when he got the call, 'Jesus, that's early'.
The same proposition was put in relation to problems that may have emerged the evening before that needed addressing early in the morning. Mr Stanbrook did not agree. He explained that, in the morning, there were 500 - 700 workers going into the tunnel to get to the stadium at the same time and he, in effect, wanted to allow time for them to get to their workstations and get settled and commence work before he would begin making rounds.
In any event, it was no part of the plaintiff's account that the issue with the purlins was raised by him with Mr Stanbrook the night before or, for that matter, Mr Bracewell. Indeed, it was no part of the plaintiff's account that he raised the topic with anyone prior to Messrs Stanbrook and Bracewell approaching the toilet block together as part of their usual rounds that morning. To the contrary: he said that, prior to them allegedly instructing him to remove the purlins, he had arrived at his own solution, which was to lay the rest of the wall from the interior side, a solution Mr Bracewell would not have ever regarded as acceptable. On the plaintiff's evidence, then, there is no reason to suppose that Messrs Stanbrook and Bracewell commenced their morning rounds earlier than usual that day to confront the issue of the purlins which they had not been told about.
Mr Stanbrook said he was not interviewed in any safety investigation in relation to the incident. He testified that the second defendant had a safety department which would have conducted the investigation. He also said that he took no action following the accident to see that a similar accident did not occur again. He said that he 'wouldn't have foreseen the accident happen again because it shouldn't have happened in the first place'.
Evidence of John Bracewell, formerly of NeoWest, about the events of that morning
In 2016, Mr Bracewell was employed as a senior foreman bricklayer for NeoWest. He had seven or eight section foremen working under his supervision. He had been working at the stadium from the start of the block work. That was his first time working for NeoWest but, at the time of testifying, he was self‑employed.
He was not a particularly articulate witness, being no doubt more a practical man than someone who is comfortable in a courtroom, and appeared to struggle a little to really listen to the questions he was asked but, with perseverance by counsel and the court, his evidence was clear enough. He was also, however, a defensive witness at times.
Mr Bracewell said he would have been familiar with the area where the accident happened, because he had been there every day and would have walked past it. He said he and Mr Stanbrook walked around the stadium daily after first having had a discussion at the subbies camp, and 'we used to walk out every morning and go and do our walk to see seven hours or eight hours, how many work hours we had at the time'. I did not understand him to be saying that they walked for seven or eight hours but, rather, that they inspected and supervised a full day's worth of work, knowing that they would be back the next morning.
He testified that, at 7.00 am each morning (later than Mr Stanbrook's 6.30 am to 6.45 am) he would meet with Mr Stanbrook and sometimes other Multiplex supervisors as well, to discuss where they were going and to get the new drawings. He said the drawings may have been modified overnight (he implied that was common) and so that was the idea of meeting at 7.00 am. He said other supervisors might also mention that the blocklayers had to be out of an area by a particular date, and so scheduling would be discussed so that he could determine how many workers needed to be put onto that area to meet the timeframe. He said that might have involved him shifting blocklayers from another area. It is apparent from that evidence that the duration of such meetings varied.
Mr Bracewell said he would never have commenced the walk to the stadium prior to 7.00 am. Mr Stanbrook, by contrast, said that he and Mr Bracewell would probably get on-site by around 7.00 am to 7.15 am, unless he was delayed. Given, however, that Mr Stanbrook said the walk from his office to the stadium was only five minutes, there is not much in the difference in that, if Mr Bracewell was correct and they never started that walk before 7.00 am, they could still have been on-site by 7.05 am.
Mr Bracewell testified that the walk commenced at event level and then, as the stadium progressed, the various levels were added moving upwards and so, over time, the 'walk' took in all the levels:
Prior to the stages we were, you might have had 80 per cent of our blocklayers there on the early stage so it could take us three quarters of an hour and then as we worked up the building, the whole walk could take to an hour to an hour and a half from event level, floors 1, floors 2, floors 3, floors 4. Where we had blocklayers working, we would go around (and we) always started down the bottom.
The length of the walk obviously increased as the stadium went up in height. The scope of works for NeoWest certainly confirms that the works were extensive. According to the contractual documents, the job was worth $11.8 million to NeoWest at commencement. It involved block laying on all levels - not finishing on each level before moving up to the next - and it would appear that the initial scheduled completion dates for NeoWest were pushed out. Consistent with the contract, Mr Bracewell said that, for the whole of the project (which did not finish until December 2017) work was being still being done on the event level:
It was. 80 per cent would be finished, some was not finished we had to go back to cos of mechanical reasons or deliveries and then we'd just work our way up the building.
As to the morning of the accident, Mr Bracewell testified that he was still at the camp when he heard over the two-way radio that there was a 'man down' and thought it was the medical officer (Enrique Gonzalez) who made that announcement. He said, when he heard the message over the two-way radio, he was not with Mr Stanbrook. That was consistent with Mr Stanbrook's account. Again, it was implicit in his evidence, if not spelt out, that he had not yet met with Mr Stanbrook. He said it would have been his plan to go to the stadium that day to do his rounds and did not recall anything unusual about that morning that meant the walk was to start earlier or later than usual.
Mr Bracewell said he then made his way to the first aid station to find out exactly what had happened, and recalls then realising that it was the plaintiff who had been injured. He said he recalls there was a first aid person there and Mr Stanbrook. He did not recall having much discussion with the plaintiff at that stage, except to the effect that he hoped the plaintiff was okay.
He could not recall whether he had seen the plaintiff at the camp that morning and said he may have as they both tended to arrive early, but he denied any discussion with the plaintiff as alleged at the stadium in the company of Mr Stanbrook. He also did not recall any previous occasion at the stadium on which a purlin had interfered with the block work.
Mr Bracewell gave no evidence, and was not cross-examined, about the plaintiff's testimony that the plaintiff called him after the accident and told him 'you need to come back here because we've got a problem', or the suggestion that Messrs Bracewell and Stanbrook encountered the plaintiff again on his way to the first aid post. Mr Bracewell's evidence implicitly denied that account, however, and cannot be reconciled with the plaintiff's evidence.
Because Mr Bracewell was not a careful witness and did not always focus on the question asked, he appeared for a moment in his evidence to have agreed with the proposition that he had instructed the plaintiff to construct the wall from the face side, rather than the interior as the plaintiff planned. Upon clarification, however, it was clear that all Mr Bracewell was agreeing with in his evidence was that walls should always be laid from the face side. He was firmly of that view, and that any scaffold should therefore be erected on the face side as well. Had the plaintiff consulted Mr Bracewell in relation to constructing the wall from the interior side, it is plain that Mr Bracewell would not have agreed with that plan. And the photographs of the interior of the toilet block make it plain that there was only one face side. There was a suggestion that the interior of the toilet block consisted in part of exposed blockwork, but none was shown in the photographs that were before the court.
Mr Bracewell's evidence was to the effect that removal of purlins was not within the scope of NeoWest's work and was not its responsibility. He said blocklayers do not touch purlins and that he had never removed a purlin. When it was suggested to him that an issue with the purlins would 'hold up works' while waiting for a rigger to come and remove the purlins, Mr Bracewell responded 'but they're on‑site. They're on‑site'. When asked 'yes, but it's going to take time?' he replied 'however long it takes'.
Mr Bracewell said that he had no recollection of being involved in any investigation into the incident, and that he was not interviewed about it. The thrust of the cross-examination on that point was to suggest that, as the plaintiff's immediate supervisor, Mr Bracewell might have expected to have been consulted in such an investigation and, when asked whether it did not seem odd that he was not asked for his input, Mr Bracewell responded 'no, not really. I wasn't there. Like, what questions would they ask?'.
The Incident Notification Form
It was uncontroversial that, following the accident, the plaintiff was tended to at the nursing post by 'Enrique from Multiplex', being Enrique Gonzalez. The nursing post was outside the stadium, near the crib rooms and canteen.
An Incident Notification form, completed in handwriting and signed and dated by the plaintiff and Mr Gonzalez on 6 October 2016, records the accident as having occurred at level 1 quadrant 3 at 7.15 (am) on 6 October 2016, and as having been reported at 7.20 (am) that same day. That indicates a five-minute gap between the accident and the reporting of it by the plaintiff. That information can only have come from the plaintiff. Mr Gonzales was not called to testify, and the document was tendered by consent. The question was: how accurate are the times mentioned in that document?
In cross-examination, the plaintiff accepted that he had signed the document and that the times noted therein would have been accurate. The defendants conducted their case on the basis that the times noted in the document represent the latest time at which the accident could have occurred, thus identifying the window of opportunity for the alleged conversation to have occurred as having been earlier than the removal of the bolts from the purlins and the resulting injury which occurred at 7.15 am. It was the defendants' case that Messrs Bracewell and Sandbrook would never have been inspecting the toilet block on level 1 as early as 7.15 am.
The times mentioned in the document, however, are somewhat inconsistent with the evidence given by all three witnesses. The plaintiff thought the conversation took place at 6.45 am. Mr Bracewell said he had not yet left the camp when he heard the news. Mr Stanbrook was emphatic that he had not left the camp when he heard of the accident, was not yet in protective clothing to go on‑site and recalled thinking 'Jesus, that's early' even though, on his usual routine, he should have left the camp with Mr Bracewell by then. Expressly, or by implication, all three witnesses placed the accident rather earlier than 7.15 am.
Compensation under this head of damages is for diminishment of earning capacity rather than loss of future earnings: Medlin v State Government Insurance Commission [1995] HCA 5 (the plurality at [4], [17] McHugh J); (1995) 182 CLR 1. Reduction in earnings post‑injury, therefore, does not equate to the value of a loss of capacity to earn, however damages can only be awarded when there is economic loss consequent upon a loss of capacity. Plainly the plaintiff retains a capacity to earn in lighter sort of work than he had previously performed because he is earning an income in that sort of work, and has a capacity to work full-time in such work should it be on offer, but merely equating his loss of capacity to that reduction in his earnings fails to capture the additional loss of competitive ability given that he is a man now of 50, with some ability to retrain but no solid academic background or computer skills, and with the chronic physical limitations he has. His work as a courier and laboratory assistant is suitable and there may be better earning jobs available involving light, very modestly skilled work.
Whatever work the plaintiff might find - and it is apparent he has a decent work ethic and wants to work - it is highly unlikely to earn him the sort of money he had the capacity to earn pre-injury. He may well get full-time work either with First Dental or some other business, or he may not, but he has the capacity for full-time work, providing his injured left arm is not overly challenged.
Before the accident, he had the capacity to earn decent money, not just for a company like NeoWest on some large project involving brick or block laying, but also the capacity to work in construction work generally, because his skills and experience went beyond bricklaying. Although he had in years past worked about half the time for NeoWest and half the time as a subcontractor, he had the capacity and the desire to work as a salaried employee, subject however to the work being on offer. He had more recently shown a desire to work as a salaried employee, but whether he would have been able to achieve that on any sort of permanent basis was dependent on the work available and also his physical capabilities as he aged, brick laying being very physical work.
I do not place much weight on his diploma in building as suggesting a greater retained capacity. There was no evidence led about how that might translate to earning capacity and it had not led to success at some higher level for the plaintiff in the past. It was highly unlikely to have translated into some managerial or consultant work in construction, given that he studied years ago, and it never did translate into that sort of work.
It is not realistic to assess his capacity to earn pre-injury as simply evidenced in the highest income he had earned when working for NeoWest on two large projects. The pattern of his work history, including a period of time when he worked for NeoWest for decent wages but returned to subcontracting, indicated that either by choice or, more likely, by virtue of market factors, the plaintiff did not sustain working as an employee and, apart from his testimony that he wanted to continue to work with NeoWest, there was no solid basis for concluding that he would have been able to maintain such a salary level over the next few decades were it not for his injury. The evidence of Mr Bracewell about NeoWest and his own return to subcontracting demonstrated the changeable environment in which the plaintiff worked. Considering those competing factors I consider it reasonable to assess that the plaintiff would likely have earned an average weekly net sum of $1,074, the average of his NeoWest salary and likely earnings while subcontracting in a reasonable year, which I earlier estimated at a net weekly salary of $750. Working on the basis that he would likely retire at the usual age of 67 years (as opposed to 70 years contended for by the plaintiff) includes what may well have been a generous assessment of his longevity in such a physical job.
The plaintiff's retained capacity is not simply the equivalent of his earnings - calculated to average weekly earnings of $377.23 on a part‑time basis. Nor is it the equivalent of his earnings on a theoretical full-time basis, at $25 per hour at 38 hours a week, equating to a weekly income of $950 gross and about $785 net. Given the modest nature of the work he is now equipped for, that full-time work may never be on offer, and he is, in addition, less competitive in the workforce generally. For example, with his skills and experience he might be ideally suited to a job in retail in the hardware field, but he could not engage in stocking shelves involving lifting materials of any weight on any repetitive basis and may therefore be less competitive than an entirely able-bodied person. He may be reasonably suitable for various jobs, but never be the successful applicant because of the need to be protective of his arm. Allowing that this was an exercise in uncertainties and likelihoods, I assessed his retained capacity as the ability to earn on average $500 net per week. That represents a reduction of $574 per week.
It was appropriate to apply a discount of 10% for contingencies - bearing in mind that the averaging out of the plaintiff's pre‑injury capacity had already factored in some unknowns - and to calculate the figures on the basis of a retirement at the usual age of 67 years rather than the age of 70 as proposed by the plaintiff.
I calculated his future loss of earnings as follows: an averaged figure of $1,074 net per week less a predicted average earnings of $500 net per week, resulting in a figure of $574 net per week, multiplied by the 6% multiplier to 67 years (which is 599.5) resulting in a figure of $344,113, multiplied by 90% (representing a discount for contingencies of 10%) resulting in a total of $309,702.
Future loss of superannuation benefits
I calculated his future loss of superannuation benefits as follows: $1,074 net per week less a predicted average earnings of $500 net per week, resulting in a figure of $574 net per week, multiplied by the 6% multiplier to 67 years (which is 599.5) resulting in a figure of $344,113, multiplied by 9.5% to reflect the contributions of $32,691. That figure is subject to a 15% reduction for taxes and fees. The result was a figure of $27,787, multiplied by 90% (representing a discount for contingencies of 10%), resulting in a figure of $25,008.
Future services
While he can do basic housework, predominantly utilising his left arm, the plaintiff cannot perform those more physically demanding tasks of house and garden maintenance which an otherwise fit and strong man of his age would ordinarily have coped with easily, leaving his house and garden not properly maintained. Although there is no evidence the plaintiff has hired workers to perform such tasks - and he has been on a modest salary - that does not mean they are not required. Between pruning, mulching, heavy weeding, planting and the myriad of other gardening tasks requiring two sturdy arms and repetitive actions, as well as gutter cleaning requiring climbing up a ladder, and the various other more demanding home maintenance tasks including thorough floor cleaning and Spring cleaning, the claim set out in the plaintiff's 'calculation of damages' schedule at the end of the trial for one hour per week - so 52 hours annually - at the rate of $33 per week (which falls within the cap set in s 12(7) CLA) was reasonable and I would have allowed that claim.
That would have allowed for a decent professional house clean once a month and/or a small team of some gardeners to come for a full day to sort the garden out in Spring and Autumn, or a handy man to come occasionally to do some maintenance occasionally. I would have allowed the claim to 75 years, after which natural ageing would have likely compromised the plaintiff's abilities to perform such tasks unaided in any event, and on the basis of 6% interest. From the date of trial, the plaintiff was 49 years old, 26 years short of achieving 75, and so I applied a 6% multiplier over 26 years of 698.7 to achieve a figure of $23,057.
General damages
Sections 9 and 10 CLA apply to the calculation of 'general damages' or non-pecuniary loss, defined by s 9(4) to mean pain and suffering, loss of amenities of life, loss of enjoyment of life, curtailment of expectation of life and bodily or mental harm.
The plaintiff suffered extreme pain at the time of injury and underwent three bouts of surgery which, despite best endeavours, did not restore his arm to its pre-injury state. He is left with significantly reduced strength and stamina in his left arm, as well as a chronic tendency to cramping. Although the plaintiff's dominant arm is uninjured, the injury to his left biceps tendon significantly curtailed his ability to take part in his preferred recreational activities - all of which were physical and sporty in nature and naturally involved the use of both arms. In addition, the tendency of his arm to fatigue and the chronic cramping pain does and will continue to affect his enjoyment of life, including impacting on his ability to sleep.
There was no evidence that his impairment will worsen over the years, no further surgery or treatment is indicated, the allograft tendon is very likely to hold and he manages to do without pain medication. I assessed general damages as being $60,000. Pursuant to s 9(3) CLA, that sum being more than Amount A (currently $23,000) but less than Amount C (currently $66,500), the damages is reduced by Amount A, resulting in a total sum of $37,000.
Accordingly, had the plaintiff been successful in his claim, I would have assessed damages as follows:
Past loss of earnings $290,257 Interest on the same $3,587 Past loss of superannuation $13,513 Interest on the same $782 Past special damages $67,325 Future loss of earning capacity $309,702 Future loss of superannuation benefits $25,008 Future services $23,057 General damages $37,000 Total $770,231
Finally, I turn to the issue of contributory negligence on the part of the plaintiff.
Contributory negligence on the part of the plaintiff
The defendants argued that, should either or both have been found liable, then the plaintiff's own negligent contribution to the accident should reduce any award of damages.
Both defendants pleaded that any injury or loss suffered by the plaintiff was the result of his own negligence, in that his own conduct caused or substantially contributed to his injury pursuant to s 5K of the Civil Liability Act, which provides that the principles that are applicable in determining whether a person is liable for harm caused through his fault also apply to determine whether the person who suffered the harm was contributorily negligent in failing to take precautions against the risk of that harm. Again, the matter was to be assessed prospectively, not retrospectively: the matter was to be determined on the basis of what the plaintiff knew, or ought to have known, at the time of the accident: s 5K(2). That standard of care required of the plaintiff was that of the reasonable person in his position: s 5K(2).
An issue was raised in the opening address for the defendants and explored briefly in cross-examination to the effect that the plaintiff could have simply constructed the wall from inside the toilet block, rather than from the face side. Obviously, had he done so, the accident would not have occurred. It was apparent from Mr Bracewell's evidence, however, that he would not have considered that satisfactory. He was very clear that a wall should only be constructed from the face side. If the plaintiff did initially construct his scaffold on the inside, then he had misgivings about departing from the usual rule and decided instead to remove the purlins.
I am satisfied that the purlins did need to be removed for the wall to be properly constructed. I find that, on the balance of probabilities, the wall could not satisfactorily have been laid from the inside of the toilet block, as that would not have produced a product of sufficient quality. It follows that I am not satisfied that the plaintiff should have simply constructed the wall from the inside, contrary to his training, and hence avoided injury. It was not his failure to do so that was the mistake he made. The mistake he made was in not informing Mr Bracewell of the obstruction he had encountered, and instead tackling the purlins himself when he was unqualified to do so and ignorant of how to do so safely.
It was the case for both defendants that the plaintiff was negligent in that, in removing the bolts from the purlin and commencing its removal single-handedly, he acted outside NeoWest's scope of works and performed a task which he was not qualified to perform, failed to seek any assistance from a qualified rigger, failed to notify Mr Bracewell, Mr Stanbrook or any other supervisor of the situation, and failed to take any reasonable care for his own safety.
Given the findings made, I am satisfied that the case for contributory negligence was made out. On those findings of facts, and assessing the situation on the basis that the plaintiff was unaware that the purlins had been installed under tension, he was still aware that they were hanging overhead in the area of a thoroughfare, that they weighed what he assessed to be about 60 kg each, that at the central point they were affixed together by the same bolts, and that they were affixed generally by bolts secured by nuts.
He knew that if he encountered any issue that obstructed his ability to do his work, he was to inform his supervisor, Mr Bracewell, yet did not. He realised there was an issue with the purlins at least by the end of work on the day before the accident, yet failed to notify Mr Bracewell, or Mr Stanbrook, or any other supervisor on that day and likewise failed to notify Mr Bracewell, or Mr Stanbrook, or any other supervisor on the morning of the accident. He made the unilateral decision to remove both purlins, even though he knew that it was no part of NeoWest's scope of works, or his job specifically, to deal with purlins, and that he had had no training or specific instruction in how to remove purlins safely.
And in the method by which he attempted to remove the purlins, alone and standing on a scaffold, removing one of the bolts entirely from one end and loosening the other, then leaving that end unattended and progressing to the middle where he knew that two purlins were affixed together, he failed to take reasonable care for his own safety - and that was the case even if the purlins had not been installed under tension. They were heavy metal beams secured by fixings which he removed and/or loosened without any assistance from another person and while standing on a scaffold. Surely anyone who has ever dismantled anything, including the most modest little lightweight set of shelves, or a bookcase or desk or garden shed or a fence or piping, has observed that objects often do not stay in place once the fixings securing them have been loosened and/or removed. The plaintiff had worked in construction for decades. He was a leading hand, with significant experience, including in high-rise construction.
While I have assumed that he was ignorant of the hidden risk of stored energy in those purlins, the plaintiff ought to have known as a matter of sheer common sense that there was a risk of harm to him in the manner in which he decided to tackle the steel purlins, because the purlins might no longer have been securely held and supported when he loosened and removed their fixtures and then put his hands under them to lift them and feel if they had any give. Added to that, he decided to do that when standing on a scaffold, increasing the risk to himself and others if the purlins did move and he had to bear their weight while maintaining his balance.
The risk was foreseeable, it was not insignificant and, if the purlins did move, there was a meaningful risk of some physical harm to him, but also to others who may have been in the area, whether because he was struck by a moving purlin, as occurred, or because he failed to hold the purlin and it fell on him or someone else, or because both ends of the purlins at the join moved and he could not hold both ends at once or was struck by the purlin, or because he had to react suddenly and lost his balance on the scaffolding. Any of those scenarios could have resulted in injury as serious as the injury he sustained, or worse. The plaintiff may have weighed the risk and thought it unlikely, or been unconscious of the risk, but he ought to have appreciated the risk.
A reasonable person in his position would not have attempted to remove those purlins but would, instead, have taken the simple step of having consulted his supervisor. In that way the situation could have been assessed and dealt with by the riggers. The plaintiff must have known that riggers were amongst the many trades on‑site, or at least accessible, given that he was working at an enormous construction site, surrounded by steel work. But even if that fact had somehow escaped him, he should have informed his supervisor that the purlins were obstructing his ability to lay the wall.
A provisional assessment of the reduction I would have made for contributory negligence would be superficial given the findings already made.
I will note, however, in case I am found in error that, had the alleged instruction been given by Mr Bracewell in Mr Stanbrook's presence and endorsed by him, as alleged, I would not have made any reduction on account of contributory negligence on the part of the plaintiff. Counsel for the defendants conceded in submissions that an argument for a reduction on account of contributory negligence would not have had merit had the plaintiff simply done as he was instructed by his own direct supervisor, with the endorsement of a senior supervisor for Multiplex on‑site, and that concession was appropriate.
While the plaintiff, in those circumstances, would still have placed himself at foreseeable risk of harm, the unequal power between him and the two men said to have given him the instruction, both of them in a supervisory position and one of them, Mr Bracewell, in a position to direct him as to his method of work, coupled with their alleged assurance that such a thing had been done previously (and impliedly without incident) would, in those circumstances, have made any deduction for contributory negligence inappropriate.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
DD
Associate to Judge Sweeney
6 APRIL 2022
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