| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : SCHEEPENS -v- CAPRICORN CONCRETE PTY LTD & ANOR [2002] WADC 208 CORAM : FRENCH DCJ HEARD : 10-17 JUNE 2002 DELIVERED : 4 OCTOBER 2002 FILE NO/S : CIV 297 of 1999 BETWEEN : KEVIN CORNELIUS SCHEEPENS Plaintiff
AND
CAPRICORN CONCRETE PTY LTD
First Defendant
KEYWEST CONSTRUCTIONS PTY LTD
Second Defendant
Catchwords: Negligence - Circumstances of accident - Steel fixer injures knee in fall - Turns on own facts - Provisional assessment of damages
Legislation: Occupational Health Safety & Welfare Act 1984
Occupiers Liability Act
Workers' Compensation and Rehabilitation Act 1981
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Result:
Claim dismissed Representation:
Counsel:
Plaintiff : Mr M E Herron
First Defendant : Mr M H Zilko SC
Second Defendant : Mr P K Walton
Solicitors:
Plaintiff : Dwyer Durack
First Defendant : Basile Hawkins
Second Defendant : Jackson McDonald
Case(s) referred to in judgment(s):
Vozza v Tooth & Co Limited (1964) 112 CLR 316
Wyong Shire Council v Shirt (1980) 146 CLR 40
Case(s) also cited:
Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301
Bennett v Minister of Community Welfare (1992) 176 CLR 408
Bowen v Tutte (1990) A Tort Rep 81-043
Bus v Sydney City Council (1989) 167 CLR 78
Doyle v Browning Ferris Industries (WA) Pty Ltd, unreported; DCt of WA; Library No D980180; 26 June 1998
Electric Power Transmission Pty Ltd v Orgaz, unreported; FCt SCt of WA; Library No 7914; 3 November 1989
Gardner Bros & Perrot (WA) Pty Ltd v Seat, unreported; FCt SCt of WA; Library No 7318; 13 October 1988
Hollis v Vabu Pty Ltd [2001] HCA 44
Lend Lease Employer Systems Ltd v Lydon, unreported; FCt SCt of WA; Library No 980088; 27 February 1998
March v Stramare (1991) 171 CLR 506
McLean v Tedman (1984) 155 CLR 306
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Medlin v State Government Insurance Commission (1995) 69 ALJR 118
Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492
Romeo v Conservation Commission of Northern Territory (1998) 192 CLR 431
Sampson v Industrial Progress Corporation Pty Ltd, unreported; FCt SCt of WA; Library No 970058; 21 February 1997
Stevens v Brodribb Sawmilling Company Pty Ltd (1986) 160 CLR 16
Thomas v O'Shea (1989) A Tort Rep 80-251
Watts v Rake (1960) 108 CLR 158
Western Australia v Watson [1990] WAR 248
Woods v Multi-Sport Holdings Pty Ltd [2002] HCA 9
Zurich Australian Insurance Ltd v Amec Services Pty Ltd & Anor, unreported; SCt of WA; Library No 90139; 31 March 1998
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Introduction 1 The plaintiff alleges that on 8 April 1997 he sustained an injury to his right knee as a result of a fall while he was in the employment of the first defendant as a steel fixer and while working on a building site occupied and/or controlled by the second defendant. 2 The plaintiff claims that he fell because his right boot was pierced and caught on a protruding edge of a steel reinforcing rod. He alleges that that accident was caused by the negligence and/or breach of statutory duty of the first defendant and the second defendant. The plaintiff's claim that the accident occurred in the circumstances is disputed by both defendants as are the allegations of negligence and breach of statutory duty. The plaintiff claims that the accident caused permanent residual disabilities and claims damages for pain and suffering, loss of earnings and earning capacity, gratuitous services and medical expenses. Both defendants dispute the range and extent of the damages sought by the plaintiff and submit that sporting accidents before April 1997 and associated degeneration of the plaintiff's knee have significantly contributed to any permanent disability and would have reduced the range and length of the plaintiff's future involvement in the work force irrespective of any injury sustained as a result of an accident in April 1997.
The pleadings 3 In a Re-amended Statement of Claim dated 25 May 2001 the plaintiff alleges that he was employed by the first defendant as a steel fixer or alternatively was engaged in that capacity pursuant to a sub-contract agreement. Paragraph 5 of the statement of claim sets out the express or implied terms of the contract of employment essentially that the first defendant had a duty not to expose the plaintiff to hazards or dangers in the course of his work. Paragraph 7 of the statement of claim alternatively claims that pursuant to any sub-contract agreement the first defendant had a duty to provide a safe system of work for the plaintiff and to take reasonable precautions with the safety of the plaintiff. 4 The plaintiff claims that the second defendant was the main contractor and occupied and/or controlled the building site and that the plaintiff was working at that site for the first defendant. In par 11 it is claimed that the plaintiff suffered an accident as a result of falling because he caught his right boot on a protruding rod of reinforcing steel.
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5 In par 12 the plaintiff claims that the accident was caused by the negligence of the first and second defendants, or alternatively, as a result of the breach of both defendants of the provisions of the Occupational Health Safety & Welfare Act. Particulars of the alleged breaches are set out in pars (a)-(d) of that paragraph. Essentially the particulars describe a duty on the part of both defendants not to expose the plaintiff to safety hazards at the site by failing to ensure that the plaintiff was not exposed to the dangers of uncapped protruding steel.
6 In pars 13-19 particulars of the injury are set out including particulars of the treatment undergone by the plaintiff, resulting residual disabilities and particulars of damages claimed. 7 The first defendant does not admit that the plaintiff was injured as is alleged and does not admit that there was a contract of employment between the plaintiff and the first defendant. If the plaintiff was injured as a result of the accident as alleged the defence of the first defendant claims that it was as a result of the negligence of the second defendant or the negligence of the plaintiff. In par 9 of the defence particulars of contributory negligence of the plaintiff are described in terms of the plaintiff's obligation as an experienced steel fixer to keep an adequate lookout for any hazardous protruding steel or to notify the first or second defendant of such a potential work hazard. 8 The second defendant admits that it was the main contractor at the site but denies that it was the occupier and/or controller of the premises. The second defendant does not admit the plaintiff's claim of suffering an accident as alleged on 8 April 1997 but in any event denies any negligence or breach of any duty arising under the Occupiers Liability Act. Paragraph 10 of the second defendant's defence pleads that if the plaintiff was injured then that injury was wholly caused or contributed by the breach of duty by the first defendant or negligence of the plaintiff. 9 Both the first and second defendants claim that if the plaintiff suffered any injury and consequent loss and damage then that is as a result of injuries sustained in previous sporting accidents that have not resolved or alternatively a pre-existing degeneration of his knee. 10 Both the first and second defendants filed notices of contribution against each other and pleadings were filed joining the issues between those parties in relation to the question of contribution.
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The issues
11 The issues to be determined in this matter are as follows: 1. Did the accident occur as alleged by the plaintiff namely that a sharp protruding steel rod pierced his boot causing him to fall? 2. Did the first defendant owe the plaintiff a duty of care as employer pursuant to a contract of employment or a duty of care pursuant to a sub-contract arrangement? 3. Was the presence of a piece of sharp protruding steel in the circumstances of this case as a result of the negligence of or breach of statutory duty of the first and/or the second defendant? 4. The extent of any injuries sustained by the plaintiff: · the extent of the plaintiff's incapacity;
· the contribution of any pre-accident sporting injuries or pre-accident degeneration of the knee and would the plaintiff have become incapacitated in any event. 5. Assessment of damages and the effect of the upper limits of a claim pursuant to the provisions of the Workers' Compensation Act.
The accident 12 In April 1997 the plaintiff was aged 24. He had left school aged 14 and had been working as a steel fixer since the age of 16 when he was allowed to go onto building sites. Steel fixing was a family trade with the plaintiff's father and two brothers all working as steel fixers. Steel fixing involves the installation and connection of steel used in reinforced concrete. The plaintiff described it as "pretty physical work involving heavy lifting and bending". 13 The plaintiff worked with the first defendant from November 1995 until he ceased employment in October 1998 apart from some periods in which he would work for North Coast Concrete a company associated with the first defendant.
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14 The plaintiff started working on the Pagoda site early in 1997. He reported to Cam McCulloch who was the shop steward on the site employed by the second defendant. He then reported to the first defendant's leading hand described as a man called Dick. The plaintiff started working with another steel fixer called Tony. He stated that each day he would report for work and a particular area of work would be allocated to him by the leading hand. The normal hours of his employment on the site were from 7.00 am to 3.00 pm 5 days a week with a half day working on Saturday. The construction technique for the reinforced concrete was a method called Transfloor that involved large concrete panels with V sections of metal struts inserted in the concrete panels. The plaintiff who had not worked with that type of system before stated that the steel fixer's job was to put the steel into these concrete panels before more concrete would be poured over to form the complete slab. The plaintiff was shown a picture of the Transflooring system shown on a brochure (Exhibit 3) and identified the trusses or V sections apparent from the picture as the rods that caused his accident. The V sections or trusses run parallel across the panel approximately 1 m apart. The concrete panels are delivered to the site and are set up by the use of cranes with help from doggers or riggers. The plaintiff described his job as "putting steel in". The steel is placed in the beams that run between panels. Mesh is laid on that and then more steel is placed in the corners and that is all tied together. The plaintiff described the method employed as the same as in a normal job. The steel fixers walk around and on top of the concrete panels and in between the beams. The plaintiff described a beam as an area where you put steel in that is between the concrete panels.
15 On 8 April 1997 at approximately 10.30 am the plaintiff was on the first floor "making up other steel beams". He said that he was in a position where he was facing the river and was putting steel into a beam when the steel rod got jammed. He stated that he brought his foot back and his foot got caught in the steel and just ripped straight through his boot and got caught in the steel cap inside the boot so that he couldn't move. He described letting go of the steel bar and falling as he had lost his balance. Prior to his fall he stated that he was straddling the area between two panels with one leg on one panel and one on another. In cross-examination the plaintiff was more specific about his position. He stated that his right foot was on the panel marked A1 (see Exhibit 4) with his left foot on C1. In cross-examination from the second defendant the plaintiff conceded that in statements made subsequent to the accident he had advised that he was inserting a steel bar 20 mm wide and 2.5 m long.
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He agrees that he has subsequently heard that the steel bar that would have been inserted into the beam he had referred to was 3.5 m long. He said that in statements to doctors and in his accident report he had used the expression "2.5 m roughly". The plaintiff denied the suggestion in cross-examination that he was in fact endeavouring to insert steel rods into beam 23 and not beam 22. He rejected suggestions that the accident was caused by his foot getting caught in a gap or being caught in steel bars rather than as a result of his boot being pierced by a sharp steel rod. He stated that any reference to that in doctors' reports or other statements were simply other people's words for his description. He denied that he had at any stage described his accident in terms of catching his foot in a steel bar or a gap. He also denies stating that at the time of the accident he was carrying a steel bar on his shoulder when he caught his foot in steel bars on the concrete panels. His response to suggestions that alternative explanations had been given on other occasions was that it was a matter of someone else writing down a different description of his communication. 16 The plaintiff described the steel rod that pierced his boot as overlapping the edge of the concrete Transfloor panel by 100 mm. He described the rod as having a sharp point as if it had been cut with bolt cutters. He identified the truss and steel rod comprising Exhibit 5 as being similar to the rod that pierced his boot. 17 The plaintiff no longer has the boots in his possession. He stated that they were stored in a shed at his mother's house but she had thrown them out after a couple of years. The Plaintiff's mother Sandra Scheepens stated that she kept the boots for about 4 or 5 years after the accident but then threw them out. She described the boots as being in reasonable condition apart from some of the stitching being open. She also stated that there were marks on the boots from where the steel rod went into the boot. Mrs Scheepens advised that she had filled in her son's workers' compensation claim form but could not understand why she wrote down the words "carrying steel bar" because she said he told her that he was pushing a steel bar in. However, she stated that she thought she would have written down what he had told her. 18 The plaintiff stated that when he fell Cam McCulloch came to his assistance. He said that Cam McCulloch was staring right at him when the accident happened but now says that he cannot remember the plaintiff's boot getting caught in the rod. He explained that that was the reason why Cam McCulloch was not giving evidence about the accident.
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19 The plaintiff stated that in his experience there was a practice on building sites of capping protruding ends of rods with a plastic cap. He identified the yellow plastic cap (Exhibit 13) as the kind of cap used for that purpose. Caps were not placed on the steel rods in the trusses on the Transfloor concrete panels although the plaintiff said that caps were put on protruding ends of steel rods in walkways.
Findings on circumstances of accident 20 Both the first and second defendants contend that the evidence does not establish on the balance of probabilities that the accident occurred in the way alleged by the plaintiff namely that he fell because his right boot was caught on a protruding piece of steel that pierced his boot through the leather to the steel cap causing him to lose balance and fall to the ground. The first and second defendants contend that the plaintiff's description of this kind of "spiking" accident is not credible for the following reasons: 1. It is inherently unlikely. 2. His description was inconsistent with the physical structure of the Transfloor panels and beams. 3. The description is inconsistent with statements made in a number of documents prepared in relation to the incident. 4. The boots said to have been spiked were not kept or shown to anyone. 5. The only witness to the accident is the plaintiff, there were no other witnesses called despite the presence of a number of people in the vicinity of the accident. 6. The defendants' expert, Mr Fisher, gave evidence that the accident could not have happened in the way alleged by the plaintiff. 7. The plaintiff's expert, Dr Chew, did not inspect the site or a similar site. 21 In his description of the accident in his evidence in court the plaintiff was quite definite that his foot was caught because his work boot was pierced by a protruding section of the rod or cord from the steel truss on the Transfloor panel and that as a result of his boot being caught he lost his balance and fell. He stated that that is the description that he has given
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to doctors whom he has consulted in relation to his injuries. However, that is somewhat different from the evidence from Dr Ng who said the plaintiff told him that his right foot became caught in a gap. This was noted on the first medical certificate dated 9 April 1997 and in Dr Ng's initial report. The plaintiff says that that is not what he told the doctor but the doctor must have written it down incorrectly. Subsequent medical reports generally refer to the plaintiff "catching his foot in a piece of steel" and falling backwards. In a report dated 18 July 1997 Dr Ng refers to the accident in terms of "his right foot became caught up". In reports from Dr Graziotti the accident was variously described as being caused by "his boot being stuck in some steel" or the plaintiff "caught his foot in a piece of steel". 22 The workers' compensation claim form dated 30 April 1997 described the accident in terms of the plaintiff "carrying a steel bar on his shoulder and caught foot in steel bars on concrete panels". Although this is closer to the plaintiff's description of piercing his boot it is not quite accurate. In cross-examination the plaintiff said that it is an accurate description. The plaintiff's mother Mrs Scheepens explained that her son told her what happened, namely that he was "pushing" a steel bar and she could not explain why she wrote "carrying a steel bar" on the claim form. She agreed that it was important to be accurate in the form but explained that she didn't understand about steel fixing. She said that it was a long time ago and she could not remember exactly why the words were put down in that form. In an affidavit sworn 23 November 1998 for s 93D proceedings, the plaintiff described his accident in the following terms: "At this time I was carrying a steel bar of approximate dimensions 2.5 x 20 mm over my right shoulder. As I neared the corner of the slab (approximately 1 m from the front of the slab) I proceeded to bend over so that I could prepare to push the steel bar in underneath a connecting steel beam which extended out from the corner. Whilst doing so I stepped backwards to manoeuvre the bar in underneath the steel beam when all of a sudden my right boot caught on the protruding edge of a steel rod." 23 The plaintiff's present description of being bent over and inserting a steel rod with his left leg on one panel and his right leg on another panel and the steel rod getting stuck so he moved his right foot back to get a better position is somewhat different to the accounts in the documents referred to above. While some of that difference is explicable in terms of communication difficulties, and the fact that the medical authors were
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concerned only with the general nature of the accident, it is unusual that there is no reference to the actual piercing of the boot. Certainly some descriptions like "boot getting stuck" and "foot caught on a piece of steel" are close. However, when that difference is added to the different descriptions of carrying the steel rod or preparing to insert it I find that there are some differences that can be characterised as inconsistent accounts. That is, they are differences that are not entirely explained by the different use of language or communication problems. Neither are the differences entirely semantic as was suggested by the plaintiff's counsel. 24 It is of significance that the boot that the plaintiff says was pierced by the steel rod was not retained by him. All of the witnesses who were questioned in relation to the nature of the accident said that they had not heard of an accident whereby a boot was pierced by a steel rod so that the person's foot was pinned causing him to lose balance. This in broad terms was the effect of the evidence of Mr Bruce, Mr Fisher, Mr McGrath and Mr Cooper. None of the witnesses called by the plaintiff was asked if they had ever heard of such an accident. When the circumstances of the accident are obviously most unusual it is of significance that the boot was not retained. While it may be understandable that the plaintiff and his mother could not initially see it as significant it is hard to understand why the boot was not preserved once the proceedings were commenced in 1999. The plaintiff says that the boot was kept in a shed for a couple of years although his mother said it was not thrown out until 4 or 5 years after the incident. Given that the application for leave of this Court to commence proceedings was heard in November 1998 clearly proceedings were contemplated within a period of 2 years after the accident. 25 The plaintiff agreed in cross-examination that he initially described the steel rod he was inserting as being 2.5 m long and 20 mm wide. He conceded that according to the plans beam 22, which corresponded with his description of the beam he was working on, does not contain rods of that dimensions but rods that are 3.5 m long. It was submitted by the defendants that the plaintiff's description of inserting a steel rod of 2.5 m length into a beam that extended out from the corner is inconsistent with an insert into beam 22 and is more consistent with inserting a rod into beam 23. The significance of this is that the plaintiff's description of his position with his legs astride a beam while inserting steel and catching his boot is only consistent with inserting a rod into beam 22. (In other words the plaintiff's account of his position means that he must have been inserting rods into beam 22. These rods would have to have been 3.5 m long rather than 2.5 m).
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26 The second defendant called evidence from Mr Timothy Fisher who said that the plaintiff's description of his position in relation to the structure was inconsistent with the position of the panels and beams in the plans. Mr Fisher is the director of a firm of civil engineers and works as a project engineer in the field of structural engineering. His experience and qualifications enabled him to be able to furnish evidence in relation to the issues in this case. In addition, he has had experience using the Transfloor system of suspended concrete slabs. He was asked to comment on the plaintiff's evidence that he was endeavouring to insert a rod into beam 22 and at that time he had his right foot on panel A1 with his left foot on slab C1. He stated that this was unlikely as in that position the plaintiff would not be behind the point that he was trying to push the bar into. He did however concede that there was no standard procedure that would be used to insert the rod into the cage in that beam and it would be a fiddly procedure. He also confirmed that by reference to the plans that it would be a rod of 2.5 m in length that would be inserted into beam 22, so either the plaintiff is mistaken as to the length of the rod that he was attempting to insert or was mistaken as to the beam that he was working on. I note that Mr Fisher's conclusion that it was necessary to stand behind rather than adjacent to the beam in order to insert the rod was not challenged in cross-examination.
27 Dr Steven Chew is a mechanical engineer and ergonomist called by the plaintiff. He is an expert in ergonomics, mechanical engineering and occupational safety. Dr Chew gave evidence that in July 2001 the plaintiff told him that his right boot got caught up in the sharp point of a protruding steel rod and it pinned his right foot. He stated that a sharp end of a protruding rod is a hazard that should have been cut off or covered with a plastic cap. He did not inspect the steel bar or a steel bar of a similar description nor did he have an opportunity of inspecting the boot. His whole report was based on advice from the plaintiff and brochures describing the Transfloor system and from other documents used in these proceedings. Prior to his appearance in court he had not seen or inspected the steel V section similar to the one that the plaintiff alleges pierced his boot. He also conducted no physical tests to see if a boot could be pierced by a similar rod. 28 I am not satisfied on the balance of probabilities that the accident occurred in the manner alleged by the plaintiff. He fell over on the construction site on 8 April 1997 but I am not satisfied that he fell as a result of losing his balance when his right work boot was pierced by a protruding steel rod. Although the evidence does not enable me to make a positive finding, it is more likely that he fell over one of the rods or in
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some other way lost his balance and then fell over causing some injury to his knee. The plaintiff's subsequent accounts of the incident did not specifically refer to the rod piercing the leather of the boot. The boot was not produced in circumstances where it would be reasonable to expect that it would have been retained as evidence of the plaintiff's account. I am satisfied that the plaintiff's account would have constituted a most unusual incident and it is surprising in those circumstances that there were no witnesses either in terms of an eye witness to the incident or somebody who was able to see the boot and the fact that the rod had pierced the leather immediately after. The plaintiff's descriptions of his actions immediately prior to the accident were also inconsistent. On some occasions he describes himself as carrying a steel rod and at other times describes himself as pushing it into a beam. His description of the rod being 2.5 m rather than 3.5 m is significant as it suggests that he was not in the position that he described when the accident occurred. In addition, the evidence of Mr Fisher who had considerable expertise and experience in relation to steel reinforcing, was that it was an unusual and unlikely stance for the plaintiff to take if he was attempting to insert a rod into beam 22 as described by the plaintiff. This is a case where the precise description of the circumstances that caused the plaintiff to fall is significant. The plaintiff's claim of negligence against the first and second defendant rests on an allegation that the sharp point unprotected by a plastic cap was the critical act of negligence or breach of duty on the part of the defendants. Put simply, the plaintiff's case is that the rod should have either been cut off or capped so that it did not constitute the kind of risk that he said caused his accident, namely a sharp protruding piece of steel that pierced his boot causing his foot to be caught and for him to lose balance and fall. This is not a case where it is alleged that the mere presence of steel rods could cause a worker to trip or to in some way "wedge" a foot in an awkward position and would thereby constitute an unreasonable risk in the circumstances. I consider that it is likely that the plaintiff was aware almost immediately after the accident that he would not have much chance of a successful claim against the defendants if he had simply tripped up on the worksite. A construction site during the installation of reinforced concrete is full of obstacles. Any worker is well aware of the need to exercise caution in moving on the site. I do not accept the plaintiff's explanation as to the circumstances of the accident. His explanation of the absence of the boot and inconsistencies in his account were unconvincing in the circumstances. Although my findings in relation to the circumstances of the accident are sufficient to dismiss the plaintiff's claim in these proceedings it is appropriate to consider the
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issues of negligence on the basis that the accident occurred as is alleged by the plaintiff.
Duty of care 29 The plaintiff claims that both the first and second defendant owed him a duty of care in relation to exposing him to hazards or dangers on the construction site on which he was working. The plaintiff claims that the first defendant's duty of care is the high standard of care owed by an employer to an employee. Alternatively, it is claimed that if the plaintiff was not an employee he is an independent contractor and in the circumstances of the particular relationship as between the first defendant and the plaintiff on the building site the duty of care owed by the first defendant was virtually co-extensive with the duty of care that would have been owed by the first defendant as employer. An employer's duty of care is non-delegable and extends to risks to be found in the premises of third parties visited by the employee in the course of his employment. 30 Alternatively, the plaintiff claims that both the first and second defendant owed the plaintiff a duty of care pursuant to the provisions of the Occupational Health Safety and Welfare Act (WA) 1985 to provide and maintain a working environment to which the plaintiff was not exposed to hazards. The first defendant maintains that the plaintiff was not an employee but was an independent contractor. Although there was no admission on the pleadings the defendants' case does not dispute that it owes a general duty of care to the plaintiff as a result of their contractual relationship and in broad terms does not dispute the duty of care arising pursuant to the Occupational Health Safety and Welfare Act. However the first defendant maintains that there has been no breach of its duty of care because the evidence does not establish any negligence on the part of either of the defendants. If that was not so and negligence was established in relation to the risk posed to the plaintiff from the presence of a sharp and protruding rod then that was solely the responsibility of the second defendant by virtue of its being the occupier of the construction site and in overall control of the safety conditions on the site. Alternatively, if it is found that the first defendant is liable, then indemnity and/or contribution is sought from the second defendant. 31 The second defendant denies that it owes the plaintiff a duty of care. Although it is conceded that ordinary principles of negligence apply where a person is injured as a result of construction works it denied that in the circumstances which occurred there was any duty of care owed by the second defendant as there was no special relationship or proximity as the
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second defendant had not employed or engaged the plaintiff. It was submitted that it was the first defendant and not the second defendant that had any control over the system of work or the manner in which the plaintiff would carry out his work. It is also submitted that the relevant risk of injury, namely that the plaintiff would suffer a spiking injury was not reasonably foreseeable by the second defendant. 32 I am satisfied that both the first and second defendant owed the plaintiff a duty of care to take reasonable steps to avoid exposing the plaintiff to hazards while he carried out his work as a steel fixer on the building site. Although the plaintiff's classification as an employee or an independent contractor has particular significance in relation to the proceedings between the first and second defendant I accept the plaintiff's submissions that the duty of care the first defendant owed to the plaintiff as an employer or as a contractor was in broad terms co-extensive. The facts that an employer's duty extends to providing a safe system of work, and covers the negligence or inadvertence of employees and is non-delegable does not impact on my conclusions in relation to negligence in the circumstances of this case. It is not therefore necessary for me to determine the plaintiff's status as an employee or subcontractor of the first defendant. The issue for determination in this case is whether the hazard comprising the protruding sharpened steel rod was reasonably foreseeable and whether either the first and/or second defendant failed to take reasonable steps to prevent the plaintiff's injury.
Negligence 33 In opening submissions the plaintiff contended that the rod that pierced his boot and caused the accident protruded beyond the V section of the truss on a Transfloor panel by 100 mm and protruded beyond the edge of the panel over the beam (the beam formed a kind of valley or concave area between the concrete panels). The plaintiff said that on the Transfloor panels some of the rods were flush with the V section of the truss and some protruded beyond the V section as in Exhibit 5. This is apparent from the pictures and diagrams of the Transfloor panel in the brochure (Exhibit 3). He stated that the one that pierced his boot protruded not only beyond the V section of the truss but beyond the panel itself and into the beam. It is the plaintiff's case that the first and/or the second defendant were negligent in failing to protect the plaintiff from the hazard constituted by the sharp protruding rod by failing to place a plastic cap over the sharp end or by failing to ensure that the end was cut flush so that it was a blunt end and did not protrude and therefore did not
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constitute a hazard. The plaintiff had not worked with Transfloor panels prior to the day of the accident. However, he claimed that when he had worked on sites with pre-cast panels rods left unprotected were capped by plastic yellow caps. He said that the practice was that if the steel fixers put steel in themselves then they had to put plastic caps over that steel. He also stated that plastic caps were placed over all vertical steel rods and any steel rods that projected into walkways. He described the cap as having a locking device so that once it was placed over a steel rod and twisted it remained fixed. 34 In cross-examination the plaintiff conceded that anyone working on a construction site engaged in constructing a reinforced concrete floor was well aware that they would have to exercise care in walking over the site. He agreed that that was a matter of common sense. The steel rods inserted by the steel fixers either in a Transfloor panel system or in a normal system were clearly visible and that meant that any obstacles would have to be avoided. He agreed that he did not identify the steel rods set into the concrete of Transfloor panels as being a potential hazard, nor did he report them to anyone working on the site or involved in the construction of the site as being dangerous. 35 The plaintiff's brothers, Darren and Rodney Scheepens were both experienced steel fixers. Darren Scheepens had worked on the Pagoda site and worked as a steel fixer on the Transfloor system. He did not think that the Transfloor system was dangerous. However, he stated that in his experience every protruding steel bar that could cause damage has to be capped. He did not agree that the usual practice was only for vertical rods or horizontal rods in walkways to be capped. Darren Scheepens stated that he had not seen caps placed on rods on the Transfloor panels. However, he did say that with other pre-cast panels caps were placed on horizontal bars by doggers or riggers before the pre-cast panels were taken off the trucks. He said that the caps would be pulled off by the grano workers before concrete was poured on the floors. Darren Scheepens also stated that in his experience it is the builder that is responsible for the capping and that would be the responsibility of the second defendant's site foreman, Cam McCulloch. 36 The plaintiff's brother Rodney Scheepens also agreed that the capping was the builder's responsibility and said that any potentially hazardous rods would have to be capped. He stated that any bars coming out of a pre-cast panel should be capped until they were joined up and the cap had been removed by the steel fixer.
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37 The plaintiff's father, Mr Cornelius Scheepens, is a steel fixer with 44 years experience in steel fixing. Although he stated that he had not had any experience working with Transfloor panels he had an opportunity of seeing the panels when he worked at the Pagoda site for a day and a half. He stated that in his experience all protruding steel rods or bars are capped or should be capped whether they are vertical or horizontal and no matter at what height the horizontal bars are placed. However he did concede in cross-examination that the risk of tripping over reinforced steel bars is inherent on any building site and there would still be a risk of tripping over the bars even if they were covered with a plastic cap.
38 Mr Reginald Hodgetts is an experienced builder's labourer. On some occasions he has also been a safety officer on a construction site. In that position it has been his responsibility to ensure that reinforcing steel bars are capped either by one of the sub-contractors who is fixing the reinforcing steel rods or by one of the builder's labourers. He stated that as a matter of practice any steel rods that look dangerous are capped whether they are horizontal or vertical. 39 Mr Kenneth Bruce is the managing director of the first defendant and a concrete worker of 29 years experience. The Pagoda site was the only time he had worked with the Transfloor system. 40 He explained that the panels were supplied by the second defendant and the first defendant's role was, in broad terms, to "tie" the pre-cast panels together and pour the concrete. 41 The panels were laid by a rigging firm engaged by the first defendant. He confirmed that the rods in the Transfloor panels were not capped at any stage of the construction. He said that in his experience only vertical rods or horizontal rods that extend into walkways at a dangerous height are capped. He was of the opinion that it was impractical to cap the horizontal rods that are being worked on as they are in the process of being tied together. 42 At T359 he explained this in the following terms: "You're in the process of tying them so you bring your steel in, you lay it down, you bring another bar in, put them together and then you tie them, you physically tie them together. So … if you capped them – you could put a cap on and walk away get your next bar, bring bar, take your cap off again. You know its just a complete waste of time and its just not done."
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43 The second defendant called evidence from two witnesses who have considerable experience in the construction industry and who were employed by the second defendant at the time of the accident. Mr John McGrath was the second defendant's construction manager for the construction site at the Pagoda Hotel. Mr McGrath had experience with the use of the Transfloor pre-cast panel system as it had been used by the second defendant on a number of other construction sites. As the manager of the project he attended on the site once or twice a week. Mr McGrath was aware that tripping accidents happened on building sites every day but he had not heard of an incident where a worker had fallen as a result of his work boot being pierced by a steel reinforcing rod. Mr McGrath was referred to Exhibit 5 and explained that in his experience the top cords of the trusses in the Transfloor panel system usually end at the edge of the panel and rarely protrudes over the end. However, he explained that the rod sometimes protrudes out from the V section and as far as he was aware that was an integral part of the reinforcement of the slab. He stated that caps were not placed at the ends of the steel rods on top of the trusses in the Transfloor systems. He also stated that it is common in conventional reinforcing concrete systems to have reinforcement rods that protrude horizontally. He stated that the Transfloor panel system in fact uses less reinforcing bars than would be used in a conventional slab. In his experience plastic caps are placed on vertical steel rods but only on horizontal rods that protrude into walkways or in circumstances where they could cause a danger. In those circumstances the rods are either capped or bent back out of the way at 90 degrees. He considered that it would be totally impractical in a conventional system to place caps on every piece of horizontal steel reinforcing rods just as it would be totally impractical to place plastic caps on the end of the top cords of a Transfloor panel system. Mr McGrath stated that representatives from Work Safe attended the construction site once a month or every six weeks and would walk around the site with the project manager and the safety officer. The Work Safe representative would make suggestions as to improved safety procedures but there was never any mention of capping the ends of the rods in the Transfloor panels. That was also his experience when Work Safe officers attended on other construction sites where the Transfloor panel system was being used.
44 Mr Alan Cooper is an experienced building site supervisor who was employed by the first defendant as a site supervisor on the Pagoda Hotel project up until December 1996. He has 41 years experience in the building industry and has worked as a site supervisor, a contracts manager and a company director in the construction industry. He explained that his
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position with the first defendant as site supervisor involved constructing the building in accordance with the plans and complying with industry recognised safety procedures. The role of the safety committee was to address safety issues on the site and to put forward recommendations to the builder in relation to safety issues. The safety committee comprised representatives of the sub-contractors including the first defendant, and met every two weeks and minutes of the meetings were taken and retained. Mr Cooper was referred to minutes of a meeting dated 25 July 1996 and he confirmed that there was a reference in those minutes to a requirement that "plastic caps to exposed reinforcement are required at all times". He stated that it was his understanding that that did not refer to the horizontal rods at the top of the V truss sections in the Transfloor panels. He said that they referred to the reinforcement coming out of the ground out of the concrete slabs. Mr Cooper stated that it was a common practice in the construction industry to place caps on vertical protruding reinforcement rods and horizontal rods that were in a position that somebody may impale themselves on the rods or otherwise injure themselves. He drew a distinction between capping a rod in what he described as a "normal" position and a "working" position. In a working position, namely a situation where the work is actually being carried out on the reinforcement at the time, horizontal rods are not capped. Mr Cooper has had experience in working on building sites where a pre-cast system similar to that of the Transfloor system was used and the horizontal reinforcing rods were not capped on those panels. He is not aware of anyone suffering any accident involving the horizontal rods in a pre-cast panel system, nor is he aware of anyone ever having a spiking accident when using a pre-cast floor panel system. He explained that the problem with putting caps on the horizontal rods on the floor units was that the men were actually working on that reinforcement and fixing steel to the horizontal rods. They would have to come off anyway to allow other bars to be connected to them so it would be impractical to cap those horizontal rods. 45 Mr Cooper stated that both the conventional reinforced concreting system and a system using a Transfloor panel system use horizontal bars and it is common in the conventional system for the reinforcing steel rods to protrude horizontally.
The expert evidence 46 In addition to witnesses who had considerable experience in working with and constructing steel reinforced concrete and experience working on
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the Pagoda site the plaintiff and second defendant also called two consulting engineers as expert witnesses. 47 Dr Steven Chew is a mechanical engineer and ergonomist. He operates a business that consults in matters regarding ergonomics, mechanical engineering and occupational safety. He has experience in investigating the causes of industrial accidents and auditing occupational safety management practises. He was consulted by the plaintiff to investigate the cause of his accident and prepared a report dated 20 July 2001. Dr Chew was provided with background information by the plaintiff's solicitors including the pleadings, insurance reports, brochures in relation to the Transfloor system and had the opportunity of interviewing the plaintiff. Dr Chew concluded that based on the information provided to him the plaintiff's accident was caused by his right foot becoming staked by the sharp point on one end of a steel par that was located 100 mm above the concrete surface of the Transfloor pre-cast slab. Dr Chew was of the opinion that the sharp end of a protruding steel bar from the Transfloor slabs constitutes a hazard. He considered that that hazard could be minimised by eliminating the protruding end of the steel bar or by ensuring that if the steel bar protrudes that the ends are blunt or covered by plastic caps. He concluded that if any of those precautions had been taken then the plaintiff's accident would not have occurred and his injury would have been prevented. 48 Although Dr Chew is an expert in occupational safety and has a PhD in mechanical engineering he does not have any experience nor has he had an opportunity of inspecting the Transfloor pre-cast panels or the steel trusses embedded in the panels. His report was prepared without the benefit of inspecting the steel bars and he admitted in cross-examination that he did not know the function of the rods in relation to the construction although he was familiar with the use of steel rods in the construction of reinforced concrete. With all due respect to Dr Chew his evidence amounts to not much more than stating the obvious, namely that the sharp end of a protruding rod could constitute a hazard in some circumstances. 49 Mr Timothy Fisher is a civil engineer who works as a director of a firm of structural engineers. As a project engineer in a structural engineering field he has the responsibility for the overall design and administration during the construction phase of a building project. In the course of his work he regularly attends construction sites and has been involved in two projects using the Transfloor pre-cast system for suspended concrete slabs. Mr Fisher was of the opinion that the Transfloor system posed no higher risk than the conventional reinforced
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concrete system. He explained that there is exposure to tripping and spiking hazards in any reinforced concrete system in that there are the same risks associated with walking around on exposed reinforcing bars with exposed ends of bars being presented at ankle height. Mr Fisher examined Exhibit 5 and confirmed that the correct terminology was that the steel V section is referred to as a truss with the horizontal elements on the top and the bottom being referred to as cords. He explained that when the Transfloor panels arrive on the construction site the bottom cords and part of the webbing of the truss is embedded in the concrete panel. While it is common for the top cord to protrude beyond the webbing of the truss he has never observed the top cord protrude beyond the edge of the panel itself. Mr Fisher explained in broad terms the theory of reinforcing concrete slabs so that a load is transferred sideways to vertical elements which take the load to the ground. He also explained that horizontal protruding bars in a conventional reinforced concrete system are readily apparent to anyone working on the site. At T414 he described a construction site in the following term: "When you're walking onto a suspended slab prior to concrete being poured on it, it is essentially a grillage of bars typically a grillage throughout the bottom of the formwork and then locally as required in the top of the slab form, and so in walking around on reinforcement it’s a case of standing on the bars that are uppermost in the layer that you are traversing. So as you walk across you have to keep your eyes on where you're going and as a result, as you're coming to the next section of slab you are aware of the layout of the reinforcement that you are approaching. I can't say much more than that about it." 50 When asked to make a comparison between the risks associated with using a Transfloor panel system as against the risks associated with the conventional method Mr Fisher discussed the potential for risks that arise in both systems. In the conventional reinforcement system he said that there is a risk from slippery plywood formwork which is not present with the Transfloor system as you walk on the concrete element itself which is slightly roughened to reduce slipping. In a conventional system when the reinforcement is laid in the formwork there are tripping and slipping risks that are associated with balancing on the reinforcement as you walk across it. With the Transfloor system the trusses pose a risk of tripping and this occurs from the moment the Transfloor system is in place. With conventional reinforcing that risk occurs towards the end of the placement of reinforcement when the top steel has been placed with the ends of the steel rods finishing at the end of a section of reinforcement. He concluded
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that while the risks occur at different times in the construction process the risks associated with the Transfloor system are of the same type as with the conventional construction process. 51 Mr Fisher explained that the protruding ends on the trusses although not forming a structural purpose are used in relation to the placement of reinforcement. The truss itself fills a role of stiffening the pre-cast concrete element and spreads the load. It also acts as what he referred to as a "bar chair" for top reinforcement. The protruding top cord acts as a support for the placement of further steel reinforcement. He explained that if the protruding section of the cord was cut off another support would have to be provided to link the sections of reinforcement. Mr Fisher stated that he had not seen any capping of the protruding ends of the top cords on the Transfloor trusses. He also stated that generally speaking it is very rare to see capping on horizontal rods. Generally vertical rods are capped and horizontal rods would require capping where such a rod was protruding from a wall at head height, or even body height, in circumstances where a person could be impaled on it. He stated that within a slab construction context he had never seen horizontal rods capped.
Findings on negligence 52 Although the particulars of negligence in the pleadings refer to the cutting off of protruding ends flush to eliminate any danger from sharp protruding rods the evidence in this case all focused on the question of whether the capping of the rods was required, and if so, on whom did that responsibility fall. The plaintiff submitted that although there was some difference between the witnesses as to whether horizontal rods were always capped or only if they presented a hazard the evidence establishes that the sharp protruding rod that pierced the plaintiff's boot should have been capped as it did present a hazard even if that was not a uniform practice in the construction industry. It was submitted that it was only Mr Ken Bruce from the first defendant and Mr Fisher who said that the horizontal rods were not capped and were not required to be capped. It was submitted that Mr Fisher had no practical hands on experience in working with the steel in reinforced concrete and no experience in using a plastic cap. It was pointed out that he is not on the site all the time and only visits occasionally. It was suggested that the evidence of Dr Chew is to be preferred as he has particular expertise and experience in occupational health and safety and in the investigation of the causes of accidents. The plaintiff argued that a protruding sharp steel rod is an
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obvious hazard that can be easily minimised or eliminated by the use of a cap which is an easy and cheap safeguard. It was also submitted that the removal of the caps prior to the concrete pour does not present a particular problem. The caps could have been placed on by a labourer on the project site, or alternatively could have been placed on the ends of the top cords of the trusses before the Transfloor panels were lifted onto the site and placed in position. 53 The plaintiff submitted that both the first and the second defendant were aware or should have been aware of the need to cap any protruding steel. The fact that the rod that pierced the plaintiff's boot was sharp increased the hazard that the plaintiff was exposed to. It was the first defendant's responsibility to take reasonable steps to protect the plaintiff, namely by capping the rod with a plastic cap, as part of its responsibility to provide a safe system of work in an environment free from hazards that could foreseeably cause injury and which could be reasonably prevented or minimised. Alternatively, it is argued that the second defendant is responsible because as the builder it has the overall responsibility for conditions on the site. It was pointed out that the fact that Cam McCulloch, an employee of the second defendant, had the position of site safety officer confirms the second defendant's overall responsibility for the conditions on the construction site. 54 There is no doubt that the conditions on a construction site when a reinforced concrete slab is being constructed constitute a difficult working environment. The nature of the plaintiff's work requires him to work on uneven surfaces between the level of the panels and the beams and to negotiate what Mr Fisher described as a "grillage" of interlocking pieces of steel that are contained within the concrete slabs that are being inserted into the beams in order to provide the various grids of reinforcement to the concrete structure. This was not a matter that was in dispute between any of the parties or any of the witnesses in these proceedings. The plaintiff and any witnesses who addressed this issue all refer to the need for caution and the fact that the nature of the work itself consisted of constructing obstacles by inserting and joining steel rods into and around the surface that they were working on. 55 In the light of all of the evidence in relation to the nature of the plaintiff's work and the function of the rods in question there is clearly a distinction to be drawn between the practice or the need of capping horizontal rods in circumstances where that presents a particular hazard and the issue of the requirement of capping horizontal rods during the time of construction. This distinction was described by Mr McGrath as
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the difference between "normal position" and "working position" and confirmed by the evidence of Mr Bruce and Mr Fisher. I am satisfied on the basis of the evidence that it is impractical to the point of being completely unworkable to cap the top cords of the steel trusses or in fact any horizontal reinforcing rods in the circumstances claimed by the plaintiff. I do not accept the evidence of the plaintiff's witnesses that there is a general practice of capping horizontal steel rods. They have either consciously or unconsciously confused the practice of capping vertical steel rods or horizontal rods in a dangerous locality with the rods at a low level horizontal plane. In this context there is no distinction to be drawn between the steel rods comprising the upper cords of the trusses in the Transfloor panels and steel rods that are inserted by steel fixers in a conventional system. The top cords of the trusses in the Transfloor system and the low lying horizontal rods inserted by steel fixers in the conventional systems are placed in position and then joined together to form the grillage referred to by Mr Fisher before the concrete is poured over to form the reinforced slab. Even if it was practical to cap the numerous horizontal rods that could only occur for a short period of time. At some stage the caps would have to be removed while the steel fixers continued to work on connecting the various sections together. 56 The presence of horizontal rods whether from a conventional system or a Transfloor system presents a constant obstacle to workers on the site in terms of the risk of falling over a rod when walking or working on the surface. There is little doubt that there is a constant risk that anyone attempting to walk across or work in those conditions could catch their foot in or around or under the steel rods that create a mesh of intersecting and interlocking obstacles at foot or ankle height. The capping of the protruding ends of these steel rods would not reduce that risk. However, in this case the plaintiff does not allege that he tripped over or fell over a steel rod. He claims that the end of the steel rod pierced his boot causing it to become stuck and resulting in his losing his balance. A number of the witnesses stated that they had never heard of a worker in the plaintiff's situation having a work boot pierced by a steel rod in the manner described by the plaintiff. While it is the case that a remote or unlikely event may still be a foreseeable risk of injury I accept the defendants' submissions that in this case it was not foreseeable that the plaintiff would lose his balance and fall and suffer injury as a result of one of the steel rods having a sharp end and piercing his work boot. Even if the risk was foreseeable in this case the magnitude of the risk and its degree of probability remain to be considered with other relevant factors. See Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47. It is obvious
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from the evidence that this alleged incident was extremely rare. It is also evident that a sharp protruding rod at that height is unlikely to cause serious injury in most cases. All it did in this case was to cause the plaintiff to lose his balance and fall to his right. He only sustained injury because he had a pre-existing condition in his right knee that rendered him vulnerable. 57 The duty that an employer owes an employee to take reasonable care to avoid exposing the employee to an unnecessary risk of injury does not mean that the employer must safeguard the employee from all risks. In order for a plaintiff to succeed: "It must appear, by direct evidence or by reasonable inference from the evidence, that the defendant unreasonably failed to take measures or adopt means, reasonably open to him in all the circumstances, which would have protected the plaintiff from the dangers of his risk without unduly impeding its accomplishment." (Vozza v Tooth & Co Limited (1964) 112 CLR 316, 318-9). 58 I am not satisfied in the circumstances of this case that either of the defendants failed to take reasonable measures which would have protected the plaintiff from the risk that he would fall as a result of a sharp end of a steel rod piercing his boot and causing him to lose his balance. The risk of that injury was not reasonably foreseeable. To cap all of the ends of the steel rods of either a Transfloor panel or a conventional reinforcing system while the steel reinforcing was being installed by the steel fixers is not a measure that is reasonably open. It would render the exercise unworkable and increase the risk of tripping over the rods. I am therefore not satisfied that, even if the accident had occurred as alleged by the plaintiff, either of the defendants was in breach of its duty of care to the plaintiff. I am also not satisfied that either defendant was in breach of any statutory duty owed to the plaintiff for the abovementioned reasons.
Provisional assessment of damage 59 After losing his balance the plaintiff fell to his right. In addition to some minor cuts and abrasions he noticed a throbbing pain in the outer side of his right knee. Cam McCulloch helped him up and he was then taken to rest and had an ice pack applied to his knee. When the pain did not subside he returned home. The next morning he tried to go to work but the pain was running up into his kneecap so he went to see his general practitioner.
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60 At the time of the accident in April 1997 the plaintiff had suffered previous injuries to his right knee but claimed that by 1997 the injuries had resolved and were asymptomatic. He was working full-time as a steel fixer and was playing cricket and football.
61 The plaintiff's initial injury to his knee occurred in 1992 when he was playing cricket. Following a further incident he was referred to an orthopaedic surgeon, Mr Honey. He was immediately admitted to St John of God Hospital in December 1992 and his leg was straightened under a general anaesthetic. Following a further incident at that time he underwent an arthroscopic procedure on 14 January 1993. He was subsequently admitted to hospital and had a right lateral meniscectomy in January 1993. Mr Goonatillake and Mr Alexeeff, both orthopaedic surgeons who gave evidence in relation to the plaintiff's knee injury, stated that in their opinion approximately 50 to 75 per cent of the plaintiff's meniscus would have been removed during that procedure. In Mr Alexeeff's opinion as a result of that surgery it was unlikely that the plaintiff would have been able to work as a steel fixer beyond the age of approximately 41 and he anticipated that the plaintiff would experience symptoms from the surgery after approximately 10 years. Other medical witnesses (Mr Hill and Dr Marsden) put the limit on his ability to work as a steel fixer at age 45. The plaintiff concedes that on the basis of the medical evidence it is unlikely that he would have been able to work beyond the age of 45 years as a steel fixer and therefore concedes that damages for future loss of earning capacity based on his capacity to earn income as a steel fixer must only be awarded until the age of 45 years. However, the plaintiff is claiming to be entitled to damages for loss of earning capacity assessed on a global basis for loss of opportunity beyond the age of 45 years as a result of the injuries sustained in April 1997. 62 There is a general consensus amongst the medical witnesses that while the plaintiff is unable to undertake heavy physical work or work that would place stress on his knee such as frequent kneeling, squatting or prolonged standing or working he is fit for light work. It has been suggested that appropriate occupations may include factory process work, general store work, forklift operation or carpark attendant. While the plaintiff concedes that he has retained some earning capacity the plaintiff claims that in his circumstances he would have difficulty obtaining employment involving appropriate light duties particularly in view of his relatively low level of education. The issues to be determined in an assessment of the plaintiff's damages are therefore the extent of his retained work capacity and the calculation of the loss of his pre-accident employment up to the age of 45. There are also issues as between the
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parties in relation to the claim for gratuitous services and other components of future loss claimed by the plaintiff. The first and second defendant also submit that any award of damages should be reduced by an apportionment to take into account the plaintiff's contributory negligence and any assessment is subject to the constraints imposed by the provisions of the workers' compensation legislation.
The plaintiff's retained earning capacity 63 The plaintiff has not returned to work since April 1997 apart from work trials conducted for rehabilitation purposes in 2001. He was in receipt of workers' compensation weekly benefits until November 2000. He has had extensive medical treatment and review on his right knee since the accident and consulted a number of orthopaedic specialists and pain management specialists. His treatment included numerous arthroscopic procedures and a right knee osteotomy in February 2000. He was referred to a rehabilitation service in June 1997 and has been involved in rehabilitation programmes including vocational training programmes since then. 64 Mr Michael Alexeeff is the orthopaedic surgeon who performed the osteotomy on the plaintiff in February 2000. Mr Alexeeff first saw the plaintiff in December 1998. Following further investigations including an arthroscopic procedure in March 1999 he formed the opinion that the plaintiff's right knee demonstrated quite advanced signs of early arthritis predominantly on the outer side. After further investigation Mr Alexeeff carried out an osteotomy which he described as a realignment procedure. He explained that the purpose of the surgery is to shift the weight bearing from the damaged or lateral part of his knee to the distal side. The surgery is a major procedure involving breaking of the leg and correcting the alignment. A nickel plate was inserted and that was subsequently removed in July 2001. Mr Alexeeff is of the opinion that the operation was successful resulting in a significant improvement to the articular cartilage and reduced symptoms of pain. Mr Alexeeff last reviewed the plaintiff in February 2002. In a report dated 26 February 2002 Mr Alexeeff referred to it having been a "long road" and two years since the osteotomy was performed. He stated that some muscle bulk was returning and that the plaintiff has regained excellent motion with almost full flexion in his knee. Although he noted the plaintiff still walked with a limp or a strange gait he did not know of a physical reason for him walking that way but in any event was of the opinion that he had achieved an excellent result as a consequence of the operation.
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65 In a report dated 12 November 2001 Mr Alexeeff confirmed the comments made by his colleague, Mr J N Hill, an orthopaedic surgeon who prepared a report for the defendant in relation to this matter that the injury sustained on 8 April 1997 brought to a head the existing condition that the plaintiff had in his knee. He stated that if not for that injury he suspected that the plaintiff would have been able to continue "largely untroubled for a few more years yet". In that report Mr Alexeeff agreed with the opinion of Mr Hill that the plaintiff was at that stage fit to undertake light work described in the terms of factory process working at bench height or working as a light duties store person or forklift operator.
66 Dr Andrew Marsden is an occupational physician who was called to give evidence by the first defendant. In a report dated 30 April 2002 Dr Marsden confirmed Mr Alexeeff's evidence in relation to the success of the osteotomy. He saw the plaintiff who advised that he had recovered well and was undertaking a work trial at Goodwill Industries through his rehabilitation programme. After examining the plaintiff, Dr Marsden stated that although the plaintiff was permanently unfit to work as a steel fixer he was fit for work on a full-time basis that avoided frequent kneeling or squatting or prolonged standing or walking. He stated that the plaintiff needs to be in a situation where he can sit, stand and walk within his own reasonable timeframe. 67 Dr Marsden also confirmed that the plaintiff is susceptible to recurrences in his condition if he further damages his knee through a fall or a knock. However, he pointed out that his main problem is the wear and tear on the medial cartilage as a result of the activities of normal daily living. He stated that the plaintiff will have to exercise caution and take steps to protect his knee. 68 I am satisfied that the plaintiff has a retained earning capacity to undertake full-time employment in any occupation that comes under the general heading of light duties and in circumstances where the plaintiff is not required to put strain on his knee and is in a situation where he was able to work in such a way as to take protective measures in relation to his knee to avoid further accelerating the damage and increasing his symptoms. There is no dispute between the medical witnesses that injuries sustained as a result of the accident on 8 April 1997 aggravated or accelerated a pre-existing degenerative condition in his knee. His damages for loss of earning capacity will be assessed on the basis that he has lost the capacity to work as a steel fixer until the age of 45. That calculation will have to be reduced to take into account his retained earning capacity. It is clear from all of the evidence that the plaintiff may
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face difficulties in obtaining employment that is suitable for his reduced capacity particularly on account of the length of time that he has been unable to work and the negative effect of his disabilities. However, the plaintiff expressed a desire to obtain employment particularly as a welder or forklift driver and impressed the rehabilitation personnel with his positive attitude toward retraining and employment. There was no evidence that the plaintiff had attempted to obtain any full-time work so the assessment on the likelihood of future employment is still largely speculative. 69 In determining the appropriate rate from which to calculate the plaintiff's past loss of earnings and a loss of earning capacity the plaintiff submitted a schedule of past and future economic loss. This schedule provides a number of alternative methods of comparison for the Court. The first alternative is based on the plaintiff's earnings for the financial year ended 30 June 1997. It is calculated that after taking into account his earnings including workers' compensation payments and deducting business expenses his weekly earnings for that period were $639.48 gross being $486.08 net. It is, however, the submission of the plaintiff that although looking at pre-accident earnings is a useful guide in calculation of economic loss it is also appropriate to look at comparative earnings of other steel fixers who are currently engaged in that occupation. As a consequence of that submission alternative methods of assessment were included in the plaintiff's schedule. The second alternative calculates a gross earning per week based on the combined average earnings of the plaintiff's brothers, Darren and Rodney Scheepens, in the five years from 30 June 1997 to 30 June 2002. This results in a gross earning per week of $1,045.79 or $730.05 net per week. The third option included in the schedule is the weekly earnings of $1,235.89 gross or $909.48 net based on the average weekly earnings in the last five years of the plaintiff's father, Cornelius Scheepens. 70 The defendants have submitted that the plaintiff's income tax returns for the period 1991 to 1997 demonstrate that the plaintiff's average weekly hours worked were approximately 20 hours per week. It is submitted that there is no indication in the evidence that the plaintiff was increasing his hours in the years leading up to his accident. It was pointed out that the evidence from the plaintiff's witness was that there was significant variation between the hourly rates for different steel fixers and that there are periods where steel fixing work is not available. The plaintiff's brother Darren Scheepens told the Court that he has not been able to find employment in the metropolitan area since last November. However, I am satisfied that it is not appropriate to calculate the plaintiff's economic
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loss in the manner suggested by the first defendant. The calculation of the number of hours worked has been based on a net weekly income rather than a gross weekly income and then divided by the gross hourly rate. This has produced an inaccurate picture of the plaintiff's average weekly working hours. It is also the case that the picture of the plaintiff's income in the five years preceding the accident includes the period in which he first started in the steel fixing trade and would also have covered periods where he was off work due to surgical procedures for his knee condition. I am also satisfied that it is likely that the plaintiff's income would have increased. Although he may not have been as industrious as his brothers or his father the hourly rate increased from $25 in 1997 to $30 in 2002. In the circumstances I consider it appropriate to determine the plaintiff's weekly income for the purposes of calculation of economic loss on an average between his income in 1997 and of the average income of his two brothers, Rodney and Darren Scheepens in the five year period from 1997 to 2002. I accept the first defendant's submissions that the plaintiff's estimate of his income in the year ending 1997 is too high as it has not taken into account the fact that while he was off work between April and June and in receipt of workers' compensation he would not have incurred business expenses. Taking that into account it is likely that his income would have been in the vicinity of $32,000 gross. The average between this and the gross earnings of Darren and Rodney Scheepens results in an income of $43,190 gross. This equates to weekly earnings of $830.57 gross or $600 net rounded off for calculation purposes. The assessment for past economic loss from the date of the accident to 4 October 2002 (287 weeks) is the sum of $172,200. 71 Interest on past economic loss would be calculated on this figure less the amount of $117,964.24 paid as workers' compensation at 4 per cent. 72 It has been submitted by the defendants that the plaintiff has not suffered any future economic loss as, although it is conceded that he would be unable to return to his pre-accident employment as a steel fixer, he is fit for full-time work in a range of occupations that do not involve heavy manual labour that would put strain on his knee. The defendants submit that the evidence indicates that the earnings from these alternative occupations would equate to, if not better, the plaintiff's pre-accident earnings.
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73 The plaintiff has prepared calculations of future economic loss on the basis of total incapacity for employment to the age of 45 or alternatively on the basis of the difference between his earnings as a steel fixer and earnings based on the adult minimum award wage of $343.40 net per week. I accept the first defendant's submissions that the evidence of Debbie Larson, the labour market economist called by the defendant, confirms that average wages for persons in the category of factory process worker, light store person or even carpark attendant are considerably higher than the adult minimum award wage. However, I am satisfied that the plaintiff may have some difficulty in the next 16 years in obtaining continuous full-time employment in those categories. Although there is employment that would be available to the plaintiff, he would be handicapped by the nature of his injury to his knee which is obvious as a result of his gait and the fact that he has now been away from full-time work for over five and a half years. Despite the positive results from his rehabilitation training programmes he will not present as an attractive package to a future employer. Although I consider that he will be able to obtain work in the suggested categories it is also likely that he will suffer periods of unemployment from time to time. I consider that an appropriate method of calculating the plaintiff's future economic loss is assessing his future earning capacity on the basis that he will be able to earn an average of $300 net per week until the age of 45. Although this is somewhat less than the $343 net adult minimum wage and considerably less than the figures provided by Ms Larson it has been reduced to reflect the difficulties that the plaintiff may face in obtaining and retaining full-time employment. It also reflects a 50 per cent retained earning capacity based on the figure of $600 net used to calculate his past loss of earnings which approximates to his present situation. Using the multiplier of 543 for the period of 16 years this produces an assessment of $162,900. This should be reduced by 10 per cent to allow for the usual contingencies plus the fact that the evidence establishes that there is some probability that the plaintiff would have injured his knee in the period from 1997 to when he turns 45 in some other way. The fact that he aggravated his pre-existing degenerative condition to his knee by simply losing his balance, falling on to his back and twisting his knee as he did, demonstrates that there is a reasonable probability that he may have sustained a similar injury in some other way. The plaintiff's pre-existing condition manifested itself as a result of sporting activities and on the plaintiff's evidence he had returned to playing sport prior to his accident. After deducting 10 per cent for contingencies this leaves the sum of $146,610, say $146,000 as the appropriate assessment for loss of earning capacity. In the circumstances of this case there is no basis for a further
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