Shirreff v Elazac Pty Ltd

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

MAJOR TORTS LIST

No. 5803 of 2009

LINTON SHIRREFF	Plaintiff
v
ELAZAC PTY LTD	Defendant

---

JUDGE:	ROBSON J
WHERE HELD:	Melbourne
DATE OF HEARING:	26, 27, 28 and 29 July and 2, 3, 4, 5, 6 and 9 August 2010
DATE OF JUDGMENT:	1 September 2010
CASE MAY BE CITED AS:	Shirreff v Elazac Pty Ltd
MEDIUM NEUTRAL CITATION:	[2010] VSC 381

---

PERSONAL INJURY – Plaintiff injured falling off a ladder in a lift shaft – Plaintiff used ladder with his injured left arm in a cast - Plaintiff an A grade electrician purportedly engaged as an independent contractor - Whether plaintiff an employee or an independent contractor – Defendant’s duty to exercise reasonable care in providing a safe system of work – Whether defendant breached duty of care - Whether plaintiff’s conduct merely inadvertence or contributory negligence – Plaintiff employed by defendant – Defendant negligent - Plaintiff contributorily negligent.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T P Tobin SC and Ms M Pilipasidis	Slater & Gordon Lawyers
For the Defendant	Mr D E Curtain QC and Ms B Y Knoester	Hall & Wilcox

TABLE OF CONTENTS

INTRODUCTION AND SUMMARY............................................................................................. 2

THE CLAIM........................................................................................................................................ 4

THE HEARING................................................................................................................................... 7

WAS MR SHIRREFF STRUCK BY THE LIFT CAR?.................................................................. 7

MR SHIRREFF’S EVIDENCE OF THE ACCIDENT................................................................... 8

THE EVIDENCE OF STONE AND TIEFFEL............................................................................. 15

ELAZAC DISPUTES THE LIFT STRUCK MR SHIRREFF..................................................... 20

MR SHIRREFF HAS NOT ESTABLISHED HE WAS STRUCK BY THE LIFT................... 32

WAS MR SHIRREFF AN EMPLOYEE?....................................................................................... 34

WAS ELAZAC IN BREACH OF ITS DUTY OF CARE?........................................................... 48

WAS ELAZAC’S NEGLIGENCE A CAUSE OF MR SHIRREFF’S INJURIES?................... 56

MR SHIRREFF'S OTHER CLAIMS.............................................................................................. 56

WAS MR SHIRREFF CONTRIBUTORILY NEGLIGENT?..................................................... 58

WHAT DAMAGE DID MR SHIRREFF SUSTAIN BY REASON OF HIS INJURIES?....... 65

ASSESSMENT OF MR SHIRREFF’S DAMAGES: PAIN AND SUFFERING...................... 71

LOSS OF EARNING CAPACITY................................................................................................. 71

HIS HONOUR:

INTRODUCTION AND SUMMARY

On the afternoon of 25 June 2002, the plaintiff, Linton Shirreff, was working in the No 1 lift shaft in a nine story building at 401 Collins Street Melbourne owned by the defendant, Elazac Pty Ltd, a company controlled by Mr Gary Morgan of Roy Morgan Research. Mr Shirreff was engaged by Mr Morgan on behalf of Elazac to supervise the refurbishment of the building which had been acquired by Elazac in 2000.

Mr Shirreff was an A grade electrician with some experience in repairing lifts. The ground floor door of lift No 1 was not working and the lift could not operate. Mr Morgan told Mr Shirreff to fix it “immediately”. Mr Shirreff identified the problem as faulty door contacts. He decided to replace the contacts located inside the lift well above the lift door and to do so by standing on a ladder in the lift well. With the help of an employee of Mr Shirreff, Mr Glenn Stone, and an employee of Elazac, Mr Giles Tieffel, Mr Shirreff placed his ladder in the lift well. There is a dispute as to what happened thereafter. There is no dispute, however, that Mr Shirreff came off the ladder and badly injured his right foot and right hand. At the time of the accident Mr Shirreff was 41 years of age. He is married and at the time of the accident had seven children. He now has eight children. The injury to his foot is so bad that Mr Shirreff has been giving consideration to having it amputated. He claims that the pain and suffering he experiences has led to psychiatric problems and the result of his injuries is such that he will probably never work again. He claims to be severely depressed and has even sought to take his own life.

Mr Shirreff claims damages from Elazac in negligence. He claims that Elazac owed him a duty of care as an employee or alternatively as a contractor. Further, he claims Elazac owed him a duty of care as an occupier of 401 Collins Street. He alleges that it breached those duties in several respects and those breaches were a cause of his coming off the ladder and sustaining the injuries that he did.

Elazac denies Mr Shirreff was an employee and says that he was a contractor of Elazac. Mr Shirreff alleges that he was struck by a descending lift when descending his ladder in the lift well, which itself injured him and pushed him from the ladder causing him further injuries. Elazac denies that he was struck by a lift and alleges he fell from the ladder as a result of his own negligence.

Elazac contends that even if Mr Shirreff was an employee, which it denies, Elazac did not breach any duty of care that it owed to Mr Shirreff that was a cause of his injuries. Elazac further contends that, if it breached its duty of care, (which it denies) and that breach was a cause of Mr Shirreff’s injuries, then Mr Shirreff was contributorily negligent.

For the reasons below, on the balance of probabilities I find the following:

(a) Mr Shirreff has not satisfied me that he was struck by a lift.

(b) While Mr Shirreff climbed down his ladder in the lift shaft to fix faulty lift shaft lights, his left hand, which was injured and in a cast, slipped from the rungs of the ladder causing him to lose his balance and fall from the ladder trapping his right foot in the rungs.

(c) At the time of the accident, Mr Shirreff was employed by Elazac.

(d) It was reasonably foreseeable by Elazac that Mr Shirreff might use a ladder in the lift shaft to repair the lift and be at risk of injury when so working in the lift shaft given the injury to his left arm and it being in a cast.

(e) Elazac breached its duty of care as an employer of Mr Shirreff.

(f) Elazac’s breach of duty was a cause of the injuries he suffered.

(g) Mr Shirreff was contributorily negligent in causing the injuries he suffered.

(h) It is just and equitable to reduce the damages recoverable by Mr Shirreff by 20 per cent.

(i) I assess his damages for pain and suffering and loss of amenities of life at $400,000 less 20 per cent for contributory negligence, that is $320,000.

(j) I assess his pecuniary loss as $1,646,171.68. The maximum permitted under s 134AB(22) of the Accident Compensation Act 1985 is $1,175,000 which is to be reduced by 20 per cent under s 26(1) of the Wrongs Act 1958, giving damages for pecuniary loss of $940,000.

THE CLAIM

Mr Shirreff alleges that Elazac is the owner and occupier of 401 Collins Street Melbourne. He says that at all relevant times he was employed by Elazac as an electrical mechanic and was acting in the course and within the scope of his employment. He alleges that Elazac owed him a duty to take reasonable care of his safety and to prescribe, maintain and enforce a safe system of work and a safe place of work for him and to carry on its operations so as to not expose him to any unnecessary risk of injury.

He alleges that on 25 June 2002, he was working in the lift shaft of Lift No 2 when he suffered injury. In fact, he was working in Lift No 1. He says that at the time of the incident he was standing on a ladder within the lift shaft when the lift unexpectedly operated, thereby descending and striking the ladder and Mr Shirreff and imparting crushing forces to his back and causing him to fall from the ladder. As a consequence he suffered injury.

He alleges that at the time of the incident Elazac

(a) knew that the lifts in the building were deficient and malfunctioning and that repair work thereof involved danger to the health and safety of working personnel;

(b) knew or ought to have known that the work to be performed by Mr Shirreff required supervisory expertise with respect to safety and performance, together with a site safety officer and safety protocol, and a sufficient number of suitably qualified and experienced personnel;

(c) had the power and control over the premises, the work to be performed there, and either the nature and number of personnel to be engaged to assess, supervise and perform or require work in a safe manner within a reasonable time;

(d) knew that Mr Shirreff was dependent on Elazac for his livelihood and that by requiring Mr Shirreff to perform the work in the circumstances, Elazac knew Mr Shirreff would do so with limited resource and personnel and in the shortest possible time frame so as to comply with the demands of Elazac;

(e) exercised a high degree of control over Mr Shirreff in the form of an emphatic demand and directions requiring the urgent performance of required works.

This last allegation is of particular importance to Mr Shirreff’s case and as will become clear refers to the demands and conduct of the controller of Elazac, Mr Gary Morgan.

Mr Shirreff alleges that at all material times it was foreseeable to Elazac and/or their servants or agents that performance of the work in the circumstances required might expose Mr Shirreff to risk of injury and harm.

He alleges the incident occurred as a consequence of the negligence of Elazac and/or their servants or agents for which one or other of them is vicariously liable.

The particulars of negligence include failing to comply with s 14B(3) of the Wrongs Act 1958 which deals with occupiers’ liability. The particulars allege that Mr Morgan had a high degree of control over Mr Shirreff and he emphatically demanded that Mr Shirreff restore proper function to the lifts as soon as possible without providing Mr Shirreff adequate personnel and/or instruction.

The particulars also allege failure to comply with regulation 9.2.1 of Statutory Regulation 127 of 2000 and failing to comply with the Occupational Health & Safety Act and regulations made thereunder.

Elazac in its defence denies Mr Shirreff was an employee and alleges he was engaged as a contractor via his business Instant Electrics and/or Rapid Refrigeration to act as the project manager and maintenance manager for and at the premises. Elazac also alleges that Mr Shirreff’s responsibilities included workplace safety and that he was responsible for planning, managing and overseeing all work being undertaken at the premises. Elazac alleges that if there was negligence by it then there was contributory negligence on the part of Mr Shirreff. The particulars include failing to retain a secure footing on the ladder and climbing and/or positioning himself on the ladder holding a torch in one hand when his other hand was incapacitated and/or not fully functional because of the presence of a splint and/or cast. It is also alleged that he failed to obtain assistance to undertake the task and that he failed to design and implement a safe system of work. He is also alleged to have exposed himself unnecessarily to the risk of injury and failed to properly concentrate on the task being undertaken.

Mr Shirreff’s primary case is that he was struck by a descending lift that knocked him off the ladder. Elazac denies that he was struck by a lift and alleges that he fell from the ladder by failing to retain a secure footing and/or by losing his grasp with his injured arm. That case is set out in Elazac’s particulars of contributory negligence.

Elazac contends that if I find Mr Shirreff was not struck by a lift, Mr Shirreff has not raised an alternative case based on the accident happening as particularised by Elazac. Mr Tobin SC, his counsel, opened the case on the alternative basis.[1] In my opinion the pleadings do cover the alternate cases that he was either knocked from the ladder or fell from the ladder. The essential plea is that he was injured while working in the lift shaft on the ladder.
[1]Tr 33, 34 and 99.

THE HEARING

I was greatly assisted by counsel for the parties. Mr Tobin SC and Ms M Pilipasidis appeared for Mr Shirreff and Mr Curtain QC and Ms Knoester appeared for Elazac. They each conducted this difficult case forcefully on behalf of their clients but fairly and properly. The Court expresses to them its appreciation.

The hearing initially proceeded before a jury of six. After hearing the plaintiff’s opening and some of Mr Shirreff’s evidence in chief, the jury was discharged without verdict. One of the jurors was unable to continue. A further jury was empanelled and it was discharged on 2 August 2010 without verdict at the request of both parties. No criticism was made of the jury, which had conducted itself in an exemplary manner. The parties indicated that they were concerned about the jury’s role in the issue of whether Mr Shirreff was an employee or a contractor. I informed the jury of the parties’, court’s and community’s appreciation for their fine service.

WAS MR SHIRREFF STRUCK BY THE LIFT CAR?

As indicated above, there is no dispute that Mr Shirreff was injured in the No 1 lift shaft at 401 Collins Street on the afternoon of 25 June 2002.

Speaking generally, Mr Shirreff claims that he entered the lift shaft to repair electrical contacts that operate the doors to the lift. The contacts are inside the lift shaft immediately above the door on the right hand side when looking out from inside the shaft.

He says that he had inserted an extension ladder into the lift well and placed it so that the top of the ladder was just above the contacts and he was able to work on them through the rungs of the ladder. He says that he asked a lift mechanic, Shane Lawler, who had been working on a separate fault in the lifts to turn off the power to the No 1 lift car so that it could not move. This he described as “isolating” the lift. This could be done from several points in the lift shaft but in this instance he asked Mr Lawler to go to the plant room which was above the ninth floor at the top of the building and switch off the isolator switch for lift No 1. He says that after he was told that lift No 1 had been isolated he entered the lift well on his own ladder and repaired the contacts. He says that as he was descending the ladder after he repaired the contacts he was struck by the lift car, which forced him off the ladder and caused him to fall. He then caught his fall by inserting a leg through the ladder. His right foot was badly damaged in the incident as was his right hand. He sustained a cut on his hair line and severe bruising to his left foot. He says he sustained injuries to his back as well.

This explanation of the accident is denied by Elazac. It contends that Mr Shirreff was not hit by a lift but rather he slipped and fell from the ladder. To resolve this issue, it is necessary to set out in some detail Mr Shirreff’s evidence relating to the accident.

MR SHIRREFF’S EVIDENCE OF THE ACCIDENT

Mr Shirreff was the sole witness to the accident. When it happened the lift doors were closed and no one else saw what happened. Immediately outside the lift door on the lobby floor were Mr Glenn Stone, Mr Shirreff’s brother in law, and Mr Giles Tieffel, an employee of Elazac’s. Both these men helped Mr Shirreff place the ladder in the lift shaft but did not see the accident. They gave evidence of what they saw and heard. I will deal with their evidence later. Mr Gary Morgan who gave the instruction to Mr Shirreff to fix the lift did not give evidence nor did his chief executive officer, Michelle LaBaine who was with him at the time he gave the instruction. Mr Lawler, the lift mechanic, was not called. What follows is Mr Shirreff’s evidence of the accident.

On the morning of 25 June 2002, at about 7.30am Mr Shirreff first went to Mr Morgan’s private residence to organise the painting of the external walls. His brother in law, Mr Glenn Stone, was working at Mr Morgan’s house. Later that morning, he attended at the Royal Melbourne Hospital to have a plaster cast removed at the fracture clinic from his injured left arm. He had fractured his left wrist some six weeks earlier at 401 Collins Street. He had shown the fractured wrist to Mr Morgan.[2] At the hospital he was seen by Mr Patten a registrar and an orthopaedic surgeon.[3] (As we will learn later, Mr Patten treated Mr Shirreff later that day after he was brought to the hospital after the accident.) Mr Patten removed the cast and replaced it with a removable plastic cast which was buttoned on. The cast extended over part of the palm of Mr Shirreff’s left hand from the bottom of the index finger to the other side of his hand level with the joint of the thumb.[4] Mr Patten said the cast had a considerable effect on the use of Mr Shirreff’s left arm. He said that Mr Shirreff would be unable to flex or extend his wrist, or rotate his wrist normally. He said the material the cast was made of was hard plastic that had no grip surface on it and was slippery.[5] He said any attempts to hold a hard surface would be markedly compromised. He said Mr Shirreff couldn’t really hold a hammer or a steering wheel of a car or anything else that had to be gripped. Mr Patten also said that Mr Shirreff’s grip strength might have been compromised as he recovered from the injury.[6] Mr Shirreff was left handed. Mr Patten advised Mr Shirreff to take go home and rest for the day.[7]
[2]Tr 142, line 25.
[3]Tr 516.
[4]Tr 519.
[5]Tr 519.
[6]Tr 519, line 26.
[7]Tr 143.

Mr Shirreff ignored that advice and instead went 411 and checked what the teams working on the refurbishment of 401 were doing. He then went back to Mr Morgan’s house where he was supervising a group of workers, including his brother in law, Mr Glenn Stone, to paint Mr Morgan’s house. Later that afternoon, at about 4.15pm Mr Shirreff and Mr Stone, who was staying at Mr Shirreff’s home, went into Collins Street, where Mr Shirreff parked his car at 411 (another building controlled by Mr Gary Morgan) and went to 401.[8]
[8]Ibid.

At about 4.30 pm on 25 June 2002, the receptionist at 411 Collins Street told Mr Shirreff that they were having trouble with the lift at 401 Collins Street. Mr Shirreff walked to 401 and observed that the right hand lift (No 1) was not operational. The lift was stuck at the ground floor. He could not open the doors. Mr Morgan came out of the other lift (No 2) with his chief executive officer, Michelle LaBaine. He instructed Mr Shirreff to fix lift No 1 immediately.[9] When Mr Shirreff gave this evidence, he raised his voice and sought to portray Mr Morgan giving this instruction in a forceful and abrupt manner.
[9]Tr 145.

Mr Shirreff went to the plant room located at the top of the building and observed from the selector that the lift was approximately near the ground floor. He applied a short circuit to the door circuit which caused the lift to move upwards. That indicated to him that there was a problem with the ground floor lock. To get access to the plant room, he and anybody else seeking access had to go through a lockable door. Mr Shirreff thought the key to the door was in it and had been so for some time.[10]
[10]Tr 150.

He resolved to fix the problem himself. He went to his office on the ninth floor and got the door contact parts he needed and proceeded back to the ground floor. He reached inside the lift and activated it to go up while he remained on the ground floor. Once he saw the lift had cleared level 1, he inserted a key or a screwdriver in the lobby door and then opened the door.[11] Opening the door had the effect of stopping the lift.
[11]Tr 147.

He opened the door sufficiently to put his head in to see where the trailing cables were and whether they were going to be out of the road of getting a ladder into the lift well. He then let the door close back against a screw driver. As the doors were not fully closed, the lift car was stopped from moving. He then sent either Giles Tieffel or Glenn Stone, or maybe both, to get his ladder from his car at 411 Collins Street.[12]
[12]Tr 148.

He sat on a pile of plaster that was directly opposite the lifts and commenced to put the contact switch together. Without looking up, he saw a pair of shoes in front of him. He said it was Shane Lawler, the lift mechanic, who had been working on an electronic light beam in the lifts to stop the doors from closing on passengers when getting in or out. He told Shane to go up to the plant room and isolate the lift. Shane told him that he had to be at an appointment by 5.00pm and he told Shane that was ‘ok’ and to go up and get the lift isolated. He asked Shane to ring down to let him know when the lift was isolated.

The lights beside the lift door indicate at what level the lift is. The lights showed the lift was at level two. He looked up and saw the lights to two disappear. He said the lights will normally not go off unless the main switch is isolated. Shane rang down to a telephone just inside a restaurant that opened onto the lobby and informed either Mr Shirreff or Giles Tieffel that the lift was isolated.[13]
[13]Tr 149.

When Mr Stone and Mr Tieffel came back with the ladder, Mr Shirreff opened the lobby lift door fully, exposing the lift well. He then inserted a small device under the door to hold it open. He then reached around the lift door into the lift well to activate a switch for the light in the lift well. He found the light was not working. There were switches for the lights in the lift well at the ground floor level, the top floor and in the plant room. He thought there had been problems with the lights and they could only be turned on from the plant room.[14]
[14]Tr 151.

The illumination in the lift well in front of him was reasonably good, but very poor above that. The light came from the lobby through the opened lift lobby door. He could see the base of the well. He had a torch with him that had been obtained from his car. He inserted the ladder into the lift well and rested it against the door sill so that it protruded into the lobby by about 6 feet or so.[15] The ladder was an extension ladder and was about 14 feet long, but could be extended to 22 feet. He was assisted by Mr Tieffel, and he thought Mr Stone, to manoeuvre the ladder to the right position.[16]
[15]Tr 153.
[16]Tr 156.

He put the tools and parts in his back pocket, grabbed the torch and descended the ladder. There was a permanent fixed ladder in the lift well on the left side of the lift well (the “pit ladder”). He did not use it. He used his ladder because it was easier to use with the disabled hand that he had which was sore.[17]
[17]Tr 153-4.

He had to introduce another ladder into the lift well as the pit ladder was not high enough to enable him to work on the door contacts. He also preferred to use another ladder to the pit ladder as it was covered in grease and very slippery.[18] He probably descended into either pit on approximately a monthly basis to retrieve keys and mobile phones.[19] He also entered the lift well for maintenance inspections periodically, but he had not worked in the pit area previously.
[18]Tr 154.
[19]Tr 155.

He descended the ladder. Whilst he did so, he was using a torch that he believed had been brought from the car by Mr Stone when he went to get the ladder.[20] After descending to the base of the pit, he repositioned the ladder so that it was leaning above the door and over the door locks he wanted to work on.[21] He then ascended the ladder.
[20]Tr 156.
[21]Tr 155.

After ascending the ladder, he put the torch in between his teeth and proceeded to undo the cover of the lift door lock and replace the contents of the door lock.[22] At that stage his feet were probably about six feet above floor level. He unscrewed the contact off the backing plate, unscrewed the wires off the contact, screwed the new contact onto the backing plate and put the wires back on.[23] He said that he probably did the work predominately with his right hand (his non-preferred hand) and used his left hand (which was partially enclosed in the cast) to support it. It took him three or four minutes to change the switch.[24] Whilst he was doing this, he could hear the other lift moving. It came down at least once and discharged passengers at the ground floor.
[22]Tr 156-7.
[23]Tr 157.
[24]Tr 157 line 23.

After he had changed the switch, he had Mr Stone release the door holding mechanism and allow the door to come towards him.[25] He did that about three or four times.[26] He did that to make sure that the switch was in the right position for the contacts to engage successfully. The switch was not activated when the lift was isolated so he had to check the contact by eye.[27] At the time he was doing the testing, he was not aware of any movement of the lift car above him.[28]
[25]Tr 158.
[26]Tr 150 line 6.
[27]Tr 158-9.
[28]Tr 160 line 9.

After Mr Shirreff finished that task, he decided to close the door fully and climb down the lift shaft and pack the ladder up.[29] As he started to descend, something registered in his subconscious that something was not quite right; he could not say what it was and “the lift came down on top of me, crushed me”.[30] At that stage, he had descended two or three steps.[31] The lift hit his head first and gashed his head at the point between his hairline and his forehead. He had his right hand on the ladder and it smashed that hand and the lift kept trying to stretch that arm longer and longer. The lift eventually forced that arm to let go.[32]
[29]Tr 159 line 11.
[30]Tr 160 line 15.
[31]Tr 161 line 13.
[32]Tr 160 line 21.

His feet seemed to go sideways. His head was pushed right down into his chest and all the air was pushed out of his lungs. He could hear the cracking and breaking of bones in his back. He thinks his feet ended up in the running gear on the same side as the door lock and his right foot felt like it was being rotated 270 degrees and was torn off and virtually hanging. The other foot swelled up like a football and went black and blue.[33] He thought “this is how you die” and he was “gone”.[34]
[33]Tr 160.
[34]Tr 160 line 30-1.

The whole lift shaft started to move round like he was light headed. The ladder seemed to get deflected with him jammed between the ladder and the lift. He believes somebody must have put a call in for the lift car, as the lift car then moved upwards responding to the call.[35] He said the lift car stopped for probably only seconds.[36]
[35]Tr 160 line 10.
[36]Tr 162 line 7.

Underneath the lift are guide rollers roughly in the centre of each side and they hang down lower than the car. They look like the front wheels on a wheelchair. They keep the lift on track. Mr Shirreff could feel his foot being rotated and the guide rollers were the only thing that would cause that rotational movement.[37]
[37]Tr 161 line 30.

After the lift moved away, Mr Shirreff said his body was sideways to the ladder and he started to slide head first down. He realised later that the ladder must have moved as when Mr Stone and Mr Tieffel were trying to get him out, the ladder was against the door.[38] He slid down by about nine feet. He lashed out madly with his feet and managed to get one tangled up in the ladder.[39] At this stage, his head was about three feet from the pit floor.
[38]Tr 162 line 24.
[39]Tr 163 line 9.

He could see the torch and it appeared to be on the ceiling. He then realised he was hanging upside down. He started yelling for help and managed to invert himself on the ladder and get one hand on it, tried to remove the other leg and managed to rotate his body round so he was facing up.[40] He started climbing the ladder on his knees and the hand that was still in the cast. His right hand was badly injured and he could not use it. The doors were opened probably when his face was level with the sill of the door. Glenn and Giles were trying to open the door, but the ladder was still against the door and Mr Shirreff had to try and bounce the ladder so the door could be opened. He thinks Giles might have reached his hand in to pull the ladder round the doors to get the doors opened.[41] He did not see Giles immediately, but Giles was the first person he saw. Giles asked him what happened and Mr Shirreff said “the lift came down on top of me”.[42]
[40]Tr 163 line 24.
[41]Tr 164 line 14.
[42]Tr 165 line 21.

Giles and Glenn asked whether he wanted an ambulance. He told them that he just wanted to get off the ladder and be seated. He says they must have assisted him. He asked to be taken to the hospital as soon as they could. Giles’ car was parked under 401 and Giles drove him to the Royal Melbourne Hospital. At the hospital, he was taken to the emergency department where he was seen by Mr Patten, amongst others, and operated on later that evening by Mr Patten.

Mr Shirreff says that the lift that struck him must have been activated after it was isolated by Shane Lawler. He believes some unknown person must have gone up to the plant room and switched the power back on by switching on the isolator switch.

THE EVIDENCE OF STONE AND TIEFFEL

Mr Glenn Stone is Mr Shirreff’s brother in law. At the time of the accident he was 24. In May of 2002, Mr Shirreff invited Glenn to Melbourne to work for him. At the time Glenn did not have a job and his father had just had a heart attack. He was staying at Mr Shirreff’s home. He worked for Mr Shirreff for about two weeks before the accident. He mainly worked painting Mr Morgan’s house.[43] On the day of the accident, Mr Shirreff went to Mr Morgan’s house to see how the painting was progressing. Glenn accompanied him back to Collins Street, to get a lift home with Mr Shirreff later that evening.
[43]Tr 332.

Glenn said he went directly to Collins Street and Mr Shirreff parked in the basement of the building. After offering to help the plasterers working in the main lobby, Glenn was approached by Mr Shirreff who told him that he needed help to get a ladder down into one of the lift shafts. He recalled Giles Tieffel was nearby and that Mr Shirreff asked Glenn whether he and Giles could get the ladder.

He said that he first recalled Mr Shirreff working on the outside of the doors when he opened and closed it a few times. Glenn said that Mr Shirreff concluded that the problem was with the contact switch and that Mr Shirreff said that he would have to fix it from the other side and they would need to get the ladder down into the shaft. He said that Mr Shirreff wedged the lift doors open and then he and Giles carried the ladder and they inserted through the open lobby lift door into the lift shaft. He distinctly recalls that there was no lighting in the lift shaft and that he was anxious.[44]
[44]Tr 335.

He said he was worried that something could happen to Mr Shirreff, only because as he was helping to get the ladder down into the lift shaft he thought that he would hate to be in there. He said the shaft was almost pitch black and deep.

He says he thinks Mr Shirreff manoeuvred the ladder to where he wanted it to be. He says he distinctly remembers Mr Shirreff standing on the ladder at ground level. He estimates the top of the ladder was about 4 feet higher than the lobby floor. He was again asked by counsel about Mr Shirreff opening and closing the doors. This time he said that Mr Shirreff was inside the shaft when he opened and closed the doors. Previously, he had him opening and closing the doors before the ladder was put in the shaft.

He distinctly recalls Mr Shirreff saying, “OK, I’m gonna fix it now or take it off,” or something to that effect. He said he did not witness anything, particularly the impact of the lift on Mr Shirreff, but he remembered hearing noises. He was unsure whether the noise came from the lift shaft Mr Shirreff was in. There were lifts clunking and banging, and he remembered all of a sudden there was silence and he had a feeling that something had happened and then all of a sudden he could hear Mr Shirreff screaming out, “Help me, help me”.[45]
[45]Tr 338.

He said that Giles opened the door with the screwdriver. They both pushed the door back and peered into the lift shaft and he said he saw Mr Shirreff trying to pull himself back up the ladder and he was probably about halfway up the ladder. He remembered Mr Shirreff looked terrible.

He said he and Giles got down on their bellies on the ground floor and both put their arms down and Mr Shirreff managed to get up a few more rungs of the ladder. They then pulled him out.

After he pulled him out, he says Mr Shirreff did not say much. He just remembered him saying that the lift came down and hit him and he said “Just get me down to Giles’ car.” He was sitting near the lift doors and asked for a chair. They used the chair to carry him down to Giles’ car in the basement.

Mr Stone agreed that he had discussed how the accident occurred at length with Mr Shirreff earlier this year after.[46]
[46]Tr 341.

Under cross examination, Mr Stone said that Mr Shirreff had said to him “I have to get this lift fixed straight away”. He agreed he did not say that in his evidence-in-chief. He also said that Mr Shirreff was “under a lot of pressure, under the pump”.[47] He then volunteered “I don’t know if you know Gary Morgan, but he’s a demanding sort of a person”.[48] He was asked if he had witnessed Gary Morgan. He said that he had “witnessed Gary Morgan, his manner, the way he spoke to Linton. Just very curt, you know, ‘Quick, we want this fixed up right now’”. He said that Mr Morgan just seemed like a very demanding person.
[47]Tr 346.
[48]Tr 346.

He was again asked about Mr Shirreff’s comment about the need to fix the lift. This time he said that Mr Shirreff said “We have to get this lift fixed before we go home”.

He was asked about his apprehensions about the lift. This time he said that he looked down the pit and he thought that if he were in the lift and the lift came down, he would be squashed.

He said that Mr Shirreff was in the shaft with the door closed for about a minute before the accident happened. He said that he did not hear the sound of the lift hitting the ladder. He said he remembered looking at the ladder when they pulled Mr Shirreff out . He said that the top of the ladder seemed to have been bent by the lift. Rather than being straight it was a little bit bent. He then said he may have just imagined it because he imagined the lift coming down on top of Mr Shirreff and the lift coming past the ladder. He then conceded that he could have been wrong, that he could have just imagined it because he was in shock.

He rejected the suggestion that he could be mistaken about Mr Shirreff saying the lift came down on him. He conceded that Mr Shirreff had no injury to the top of his head.

In re-examination, he was asked about conversations between Mr Morgan and Mr Shirreff. He said, “My reaction at the time was this guy’s a bully – a big bully and my reaction was if I was Linton I’d tell him to go and stick it. He was being - to me he wasn’t showing common courtesy in – like, just his demanding attitude. I couldn’t have stuck it”.[49]
[49]Tr 360.

Mr Giles Tieffel initially worked on 401 Collins Street and was then employed at the site by Elazac. He worked at 411 and also at Mr Morgan’s home. On the day of the accident, he was plastering on the mezzanine floor. He said he overheard Mr Morgan giving instructions to Mr Shirreff to fix the lift while he was on the mezzanine floor above and Mr Shirreff and Mr Morgan were in the ground floor lobby below. He said Mr Morgan said that the door had been playing up on the lift and he wanted it fixed now. He said the instruction was quite a shout.[50] About half an hour later, he went down through the lobby to get some supplies and saw Mr Shirreff and Glenn standing there with a ladder and the lift shaft door open.
[50]Tr 622.

He said he was asked by Mr Shirreff to get the ladder into the lift. He said after it was in the shaft, Mr Shirreff climbed down and extended the ladder up a bit further so that it was above door level.[51] He said the ladder was resting against the wall opposite to Collins Street, that is the south wall. Mr Stone and Mr Shirreff say it was resting against the east wall into the lobby.
[51]Tr 627.

He said it was not necessary to move the ladder to close the door. He said Mr Shirreff asked him to close the lift doors. At that stage, his head was above the floor level. Whilst the door was closed, he heard Mr Shirreff shout out that the lift was coming down. He said he could not see the lift moving from the outside. He said after that he heard Mr Shirreff calling out from the bottom of the lift shaft. He said he opened the door and saw the ladder exactly where it was when the door closed with the top a foot or so above the height of the door. He was asked whether he had a conversation with Mr Shirreff after he and Glenn pulled him out of the shaft. He said he can not remember having any real conversation with him.[52] As indicated above, Mr Stone gave evidence that Mr Shirreff said when he was pulled out of the lift that the lift came down and hit him. Mr Tieffel did not confirm Mr Stone’s evidence on this important issue. He confirmed the evidence about getting Mr Shirreff a chair and Mr Shirreff asking to be taken to the hospital.
[52]Tr 632.

He was expressly asked whether he had any conversation with Mr Shirreff about how the accident happened and he said, “no”.

After the accident, Mr Tieffel was interviewed by James Wallace, the chief accountant of Elazac.[53] The statement is consistent with his evidence, save that he does not mention that Mr Shirreff called out that the lift was coming down. In his first interview on 4 July 2002, he was asked his opinion of what caused the accident and he said: “After the lift started to descend, Linton slipped off the ladder and fell into the pit”. On 11 July 2002, Mr Tieffel was again interviewed and asked why he thought the lift moved. He said, “I assumed that the lift must have moved being the reason that Linton slipped on the ladder and fell. I did not actually see the lift move, it was an assumption on his part”. He did not say he assumed the lift moved because Mr Shirreff had yelled out that it had whilst in the lift shaft.
[53]Exhibit D8.

Under cross examination, he agreed the ladder was extended to about one foot above ground level. He agreed that Mr Shirreff’s head was around where the ladder finished when he pulled out the chock and closed the door. He had difficulty in estimating how long the door was closed before Mr Shirreff called out. He thought it was for about a minute or two. He agreed he did not hear Mr Shirreff falling and he could not hear the lift moving. He was cross examined on his statement to Mr Wallace. He said that he only recently recalled that Mr Shirreff had called out that the lift was coming down. He ultimately conceded that he could have been wrong about hearing Mr Shirreff calling out that the lift was coming down and then finally accepted that he had obviously got mixed up. He agreed that the first thing he heard Mr Shirreff say in the lift shaft was, “help me, help me”. He did not persist in his evidence of Mr Shirreff calling out that the lift was coming down on him. He said he got mixed up and was speculating.

Like Mr Stone, Mr Richard Kelsey approached Mr Tieffel and told him that he would have to give evidence in Mr Shirreff’s case.[54] Mr Tieffel also said Mr Shirreff contacted him some months ago. His main concern was to ask if anyone else was working in the building that day and he specifically asked about lift mechanics.
[54]Exhibit 653.

ELAZAC DISPUTES THE LIFT STRUCK MR SHIRREFF

Elazac does not deny that Mr Shirreff was badly injured in the lift shaft. It does deny the accident happened as Mr Shirreff says it did. In particular, Elazac says that Mr Shirreff was not hit by the lift car. Rather, it says Mr Shirreff lost his grip on the ladder and injured himself in the fall from the ladder. Elazac contends that Mr Shirreff has not proved that he was struck by the lift car and that his version of the accident should not be accepted. Elazac relies on a body of evidence that it says establishes the true cause of the accident. I now turn to that evidence.

On 5 July 2002, some nine days after the accident, Mr Shirreff completed a Worker’s Claim Form to submit to WorkCover. The form did not mention Mr Shirreff being hit by a lift, but said that the accident was caused by his splint arm slipping and him falling.[55] The claim form was filled in by his wife but signed by Mr Shirreff in the presence of a witness. Under cross examination, Mrs Shirreff ultimately conceded that she obtained all the details of the accident included in the claim form from Mr Shirreff alone. The claim form stated that he was climbing down a ladder and that he was ”holding the ladder loosely due to splint from previous injury on (L) arm slipped and fell” and “broke ankle through rungs of ladder and hand in fall”. There was no mention of any contact with a lift.
[55]Exhibit D1.

When Mr Shirreff was shown the form in cross examination he said it was more than likely filled in by his wife.[56] (Mrs Shirreff later confirmed she did fill it in.) He said he signed it without paying much attention to it. He said he didn’t read it.[57] He denied giving his wife the description of the accident included in the claim form.[58] He suggested she obtained the information on the form about the accident from somebody other than himself, even suggesting she may have got the information from Giles.[59] As discussed above, Mrs Shirreff admitted getting the information from Mr Shirreff.
[56]Tr 226, line 4.
[57]Tr 225, line 1.
[58]Tr 226.
[59]Tr 226, lines 1 – 9.

Mr Shirreff was visited in hospital by Mr Wallace, the Chief Accountant for Elazac. Mr Wallace told Mr Shirreff that he was preparing a report on the accident for WorkCover and wanted to know how the accident happened. On 10 July 2002, Mr Shirreff told Mr Wallace that the cause of the accident was as set out in the Worker’s Claim Form and did not mention a lift hitting him. Mr Shirreff claimed that he only communicated with Mr Wallace through nods and shakes of the head. Mr Wallace denied this and said he obtained the information from Mr Shirreff orally. Mr Wallace was not challenged on this in cross examination. I accept Mr Wallace’s evidence.

As mentioned above, Mrs Shirreff says that Mr Shirreff gave her the information she used to fill out the Worker’s Claim Form and that the cause of the accident was as set out in the form. She says he did not tell her about the lift hitting him until some three or four months later when, he was in the foyer at a church.[60] He told a fellow worshipper, Mr Bruce Hales, that he had been hit by a lift.[61] She said she was surprised to hear about the lift hitting her husband as he had never mentioned that to her before.
[60]Tr 587.
[61]Tr 608.

Mr Shirreff said that Mr Hales had been a spiritual leader to him.[62] Mrs Shirreff said that Mr Hales was an accountant who now lives in Sydney. [63] Although it was put to Mr Shirreff that his story that he was hit by a lift was a recent invention, Mr Hales was not called and no explanation was given for the failure to call him.[64] I conclude that Mr Hales’ evidence would not have assisted Mr Shirreff’s evidence of the conversation.
[62]Tr 316.
[63]Tr 608.
[64]Tr 308. For discussion of principles relevant to recent invention see: Dr Selwyn Leeks v XY [2008] VSCA 21 [15]-[36] per Redlich JA (with whom Buchanan and Vincent JJA agreed).

Mr Shirreff claims that he probably had told another person earlier but could not remember who. He said he could not bring himself to talk about how the accident actually happened. He said it made him ill and he just could not talk about it.

In opening Mr Shirreff’s case, his counsel said that Mr Shirreff’s injured right foot was caught in the roller under the lift that ran down a guide rail on the eastern wall of the lift well. In support of that contention, his counsel opened that the wounded foot had grease on it from the roller, which had to be removed by Mr Sam Patten, the surgeon who operated on his foot on the night of the accident. Mr Patten gave evidence and no evidence was led from him that any such grease was found in the wound.

The records of the emergency department at the Royal Melbourne Hospital contain a version of the accident inconsistent with Mr Sherriff being struck by a lift. The records for 25 June 2002 were put to Mr Shirreff. The records noted Mr Shirreff’s past history of left fracture of wrist and operation on left tibia. Mr Shirreff says he did not recall telling them that.[65] The record noted “fell approximately 12 feet, elevator shaft, landed onto right foot and right hand.” Mr Shirreff was asked whether or not that statement was accurate. He said it did not appear to be. He agreed that the information about the accident could have only come from himself or Giles Tieffel who took him to hospital. He agreed that Giles did not see what happened and that could only have got that information from him. Mr Shirreff suggested that the statement that he landed on his right foot and right wrist had been assumed by the hospital staff and did not come from him.
[65]Transcript 306, line 3.

Elazac contends that various doctors and health professionals who attended to Mr Shirreff or saw him for the purpose of a medico-legal report described the accident as a fall rather than being hit by a lift car. Each of the reports was tendered in evidence. None of the authors of these reports were challenged on their record or that they had been informed by Mr Shirreff of how the accident happened. Elazac contends that either by inference or reference in the reports, that Mr Shirreff gave the version of events recorded in the report.

It was put to Mr Shirreff that he provided the description of the accident recorded in the reports. Mr Shirreff denied doing so. He claimed that none of these medical practitioners asked him how the accident happened and that each and every one of them wrongly assumed that he had fallen off a ladder, rather than being pushed off by a descending lift. Elazac claims that this is an inherently unlikely proposition especially in view of the well recognised practice of doctors to ask the patient how the injuries were incurred.

Mr Michael Troy, in his report of 10 June 2003, records under incident history:

On the 25/06/2002 he fell down a lift shaft from a ladder, he had a torch, he had an assistant above and he literally fell 12 ft. He stated that he fell such that his right foot went through the rung of the ladder.[66]

[66]Exhibit D 12.

Ms Judith McKenzie, in her report of 8 December 2003, says she saw Mr Shirreff on 3 December 2003 and records under history:

On 25 June 2002 as he was making his way down a ladder in a lift shaft he fell a distance of about 9 foot. During the fall his right foot went through the rung of the ladder and under a beam which trapped the foot and as a result his body weight swung over the foot which was obviously seriously injured and there was also an injury to his non dominant right hand.[67]

[67]Exhibit D 13.

Dr Mark Cunningham examined Mr Shirreff on 6 May 2004 and, in his report of that day, said:

When asked about his symptoms and associated circumstances the worker responded that he had a short fall down a lift shaft approximately 9 feet to the bottom and he believed that his leg had been twisted under a ladder, which had slipped.[68]

[68]Exhibit D 14.

Dr Timothy Entwisle, consultant psychiatrist, assessed Mr Shirreff’s psychiatric condition on 12 April 2006. In his report of 21 April 2006 he reported:

His injury occurred at 401 Collins Street where he was doing some maintenance work in a lift shaft. He fell some twelve feet, sustaining a right ankle fracture, right fractured metatarsals, compression fractures of his thoracic spine (T1 to T5) and lower back injuries.[69]

[69]Exhibit D 15.

Dr N R Rose saw Mr Shirreff on 14 April 2008 for psychiatric examination and report. In his report of that day he stated:

Mr Shirreff was very well before the accident on 25.06.2002. He was on a ladder in a lift well when he fell down the lift shaft a distance of approximately six metres. He sustained multiple fractures. He remembers screaming with fear as he was falling. The fear was such that for five years or more since the accident, he has tried to blank out all memories of the accident. Whenever he closes his eyes, he relives the accident in the form of flashbacks.
….
Ever since the accident, Mr Shirreff has had severe nightmares and flashbacks. The nightmares were particularly severe during the first three to six months after the accident, but now they are less frequent. There have been significant symptoms of avoidance in terms of not wanting to talk or think about the accident, avoiding people in the city because of lifts and feeling numb at times.[70]

[70]Exhibit D 16.

Tracey Vine, vocational consultant of Crosslinks, assessed and reported to Wyatt Gallagher Bassett Workers’ Compensation on 25 January 2004. In her report she recorded:

Mr Shirreff states that he was climbing a ladder, in a lift well, when he slipped and fell. His right leg became stuck between rungs on the ladder and a beam attached to the wall of the lift shaft. At the time of sustaining the injury Mr Shirreff’s left arm was in a splint due to a previous injury, which, he states, prevented him from maintaining a firm grip on the ladder.[71]

[71]Exhibit D 17.

Ms Erin Beer, an occupational rehabilitation provider of the Industrial Work Conditioning Clinic, assessed Mr Shirreff in November 2005. Her report to the Victoria WorkCover Authority of 15 December 2005 states:

According to Mr Shirreff he sustained multiple injuries on 25 June 2002 when he fell down a 12 foot lift shaft in the workplace. Mr Shirreff reported sustaining a right ankle fracture, fractured right metatarsals, and compression fractures of his thoracic spine. In addition to this, Mr Shirreff advised that injuries to his lower back and left foot have been recently noted.[72]

[72]Exhibit D 18.

The report did note that medical information relied on in the report was obtained from three other medical reports.

Another report was tendered from CoWork Pty Ltd. It was prepared on 29 October 2009 after the proceedings were commenced on 6 April 2009. It appears to rely on the affidavit of Mr Shirreff used in his serious injury application to the County Court which was sworn on 22 July 2008.

Mr Shirreff was asked for his explanation for not mentioning the presence of the lift as the cause of the injury to any of these people. He replied:

Well, normally you wait for the doctor to ask you the questions and the first question is – well, the first remark is they seem to make is, “You fell down a lift shaft, did you, how far did you fall?”
So they suggested it? Each of them?
Correct.
Correct? Each and every one of them?
Pretty much.[73]

[73]Tr 447 lines 22-28.

Elazac concede that one or two doctors may have done what Mr Shirreff suggested but contended that it was inherently unlikely that each and every one would have.

On the other hand, the psychologists report of Zineta Dedovic of 22 November 2007 does contain the description of the accident involving the lift coming down on top of Mr Shirreff and almost crushing him. It states his immediate thought was “so this is how you die” and that he was overwhelmed with despair that he would not be able to say goodbye to his family.[74] This report was taken some five years after the accident and some eight months before serious injury proceedings in the County Court where he did allege he was struck by a descending lift.
[74]Exhibit P25.

Elazac contends that Mr Shirreff’s version of events is highly implausible. It says no damage was done to Mr Shirreff’s ladder. Mr Shirreff did not suffer any material head injury. Elazac submits that for his foot to be injured by the lift it would need to be above his head. Elazac argues that the trailing cables would have appeared beside Mr Shirreff well before the lift arrived and in all likelihood would have hit him. The cables trail some two floors below the lift. Elazac contends that if his story is correct, Mr Shirreff would have noticed them. It says there was no evidence that the cables had been changed since the accident. The trailing cables were seen by the court on a view of the lift at 401 Collins Street.

Elazac relies on the fact that the ladder that Mr Shirreff used did not sustain any damage even though the gap between the lift and the wall on which the ladder was resting was miniscule. According to Mr Shirreff’s evidence, the lift hit his hand that was hanging onto the rung of the ladder. Initially, Mr Shirreff said there was no damage to the ladder. Subsequently, he said he had examined the ladder and there did appear to be some slight damage. The ladder was tendered in evidence. It showed no signs of being hit by a lift car.

Extending from the bottom of the lift car is a toe guard. It is a metal sheet that is the breadth of the lift car and about a metre in length that extends from the bottom of the lift car between the lift car and the front wall. As the lift descends, the lift cables would be hanging from the bottom of the lift car and the toe guard would extend from the bottom of the lift car for up to about one metre below the floor of the lift car hard up against the front wall of the lift shaft. Elazac contends that the toe guard would have hit the ladder with some force before the floor of the lift car itself hit Mr Shirreff. There is no evidence of any such impact.

Elazac also relies on significant discrepancies between Mr Shirreff’s evidence and the version of the accident given in paragraph 10 of Mr Shirreff’s affidavit of 22 July 2008 that he used in his serious injury application in the County Court.[75] In paragraph 10 Mr Shirreff said:

On 25 June 2002, I was repairing one of the lifts at the building at 401 Collins Street, Melbourne which was faulty. The lift was No 2 in the building and the first fault related to the ground floor door lock not operating correctly. I changed the contacts followed by successfully testing the door function. The lights relating to the lift shaft were not operational and I was required to enter the shaft to repair this problem.

[75]Exhibit D2.

Elazac claims that this version is inconsistent with Mr Shirreff’s evidence which did not mention entering the shaft to repair the lights. Rather, he said in evidence he entered the lift shaft to fix the contacts. In his evidence, Mr Shirreff said that after he repaired the contacts he descended the ladder to “fold it up.” Under cross-examination he was loath to admit that he descended the ladder to repair the light problem.

His affidavit continued:

I placed a ladder to the base of the shaft. Before performing this work I had taken steps to prevent the lift from operating by arranging for the lift shaft to be isolated and for the lift well door to be held open. I did not have time to double check that these precautions had been implemented. The main crew of workers was over at Mr Morgan’s premises in East Melbourne performing work there as directed by him. Those at the Collins Street building included employees and contractors of the Firstnamed Defendant. I am presently unable to recall the individual to whom I gave instructions to isolate lift number 2, however, as I have discovered subsequently, the wrong lift well was isolated and not number 2 as instructed.

Elazac points to two inconsistencies with Mr Shirreff’s evidence. First, he identified the person to whom he gave the instructions to as Shane Lawler, but in his affidavit he says that he was unable to recall the individual to whom he gave instructions. Secondly, his evidence was that lift No 2 (that is the one next to the one he was working on) was in fact working and that he heard it moving, but in his affidavit he says that the other lift had been mistakenly isolated. Mr Shirreff explained his statement that he was unable to recall the individual to whom he gave instructions by saying he only in the last month or so recalled the name of Shane Lawler.

Mr Shirreff’s affidavit continued:

Mr Morgan had emphatically demanded that I get the lift wells working before I entered the lift shaft. I placed the ladder in the lift well to the base of the well, and commenced descending the ladder with a torch. I had some compromise in descending the ladder because of my left hand and arm in a splint. Whilst descending the lift door closed. Soon after as I was still descending the ladder, the lift also descended and struck me on the head. Apart from the small focus of light with the torch there was complete darkness and I was unable to observe the lift coming towards me.

Elazac points to inconsistencies between the evidence in the affidavit and that given in this case. The passage quoted suggests that Mr Shirreff was about to repair the lift lights when the accident happened. His affidavit states he placed the ladder in the lift well to the base of the well and commenced to descend the ladder. This is inconsistent with his evidence in this case. In evidence he said that after he placed the ladder in the lift well, he descended the ladder to the floor of the lift well pit to reposition it so that it extended above the door contacts. He said he then ascended the ladder and repaired the contacts. After repairing the contacts, he says he started to descend to “pack up the ladder up” when he was struck by the descending lift.[76] He says in his affidavit that whilst descending the ladder, the lift door closed. This is inconsistent with his evidence in this case where he said that he closed the door himself before he started to descend.
[76]Tr 159 line 11.

In paragraph 11 he says:

In the aftermath of the accident it was apparent that the wrong lift shaft had been isolated. Because of the pressure of time I did not have the opportunity to double check this safety aspect.

This is inconsistent with the evidence he gave in this case. In this case, Mr Shirreff said that he was informed by Mr Lawler that the lift had been isolated. He gave evidence that the other lift was working and it was not isolated. His said in evidence that some unknown person must have reactivated lift No 1 after Mr Lawler had left.

Elazac relies on the contradictory evidence given by the witnesses as to what Mr Shirreff said immediately after he was pulled out of the lift shaft. Mr Shirreff says that Mr Tieffel asked him what happened and Mr Shirreff said “the lift came down on top of me”.[77] Mr Tieffel did not support that evidence. He was expressly asked whether he had a conversation with Mr Shirreff after he was pulled out of the lift and he said that he could not recall. On the other hand, Mr Tieffel said that in the last few months before the trial he had recalled that Mr Shirreff called out whilst in the lift that the lift was coming down. As discussed above, Mr Tieffel resiled from that evidence under cross examination and agreed he heard no such thing.
[77]Tr 165 line 21.

Mr Tieffel said that he had been asked by Mr Richard Kelsey whether he would be giving evidence in this case. When Mr Shirreff was cross examined on whether he told Giles that the lift came down on top of him, he was asked whether he was sure of that and he said “Well I’ve been told since”.[78] He said that he was told that by Mr Richard Kelsey who had been talking to Mr Tieffel. He was asked, “He told you that you told Giles that a lift had struck you immediately you got out of there?” (“there” referring to the lift well) and Mr Shirreff replied “Yes”.
[78]Tr 310 line 15.

Mr Tieffel does not claim that Mr Shirreff said that. The fact that Mr Shirreff relies on Mr Kelsey’s mistaken version of what Mr Tieffel recalls to support his believe that he told Giles he had been hit by a lift, significantly detracts from the reliability of Mr Shirreff’s evidence on this issue. It is likely that Mr Shirreff’s evidence that he told Giles that the lift came down on him is based in part on his belief (falsely fostered by Richard Kelsey) that Giles would give evidence to that effect.

I am unable to accept Mr Stone’s evidence that he heard Mr Shirreff tell Mr Tieffel that the lift came down on him when Mr Tieffel himself does not support that evidence.

As discussed below, Mr Tieffel’s contemporaneous conversation with Mr Wallace about how the accident happened suggests that he heard no such thing. It is likely that if Mr Tieffel had heard any such thing he would have told Mr Wallace that Mr Shirreff called out that the lift came down in support of his own speculation that that is what in fact happened and especially where Mr Wallace was seeking to establish how the accident happened. As it is, Mr Tieffel did not tell Mr Wallace that he had heard Mr Shirreff say that or anything similar.

Elazac contends that Mr Shirreff did not correct his WorkCover application after he says that he first made known to his wife and a member of his church that he was hit by the lift car.

Mr Shirreff claims he first told Mr Bruce Hales at his church that he was hit by the lift. Despite it being put to Mr Shirreff that this was a recent invention, there was no explanation why Mr Hales, who currently lives in Sydney, was not called to rebut the suggestion that Mr Shirreff’s evidence was a recent invention.

Elazac submits that the evidence of Mr Stone and Mr Tieffel should be rejected. Mr Stone was Mr Shirreff’s brother in law and Mr Tieffel a member of his church. Elazac claims they were not independent.[79] As it was, Mr Tieffel’s description of what took place is at variance with Mr Shirreff’s version in several respects. He says the ladder was placed on the left hand side wall and not on the front wall with the top of it about a foot above the floor.[80] He claims that when the lift doors were closed he heard Mr Shirreff shout out that the lift was coming down.[81] He says that when he helped pull Mr Shirreff out of the lift well, he could not distinctly remember having any real conversation with him.[82] He did not support Mr Stone’s evidence that when Mr Shirreff was pulled out of the lift he said that the lift had come down on him.
[79]Tr 840 line 25.
[80]Tr 629 line 16.
[81]Tr 628 line 22.
[82]Tr 632 line 11.

Under cross examination, Mr Tieffel agreed that he had told Mr Wallace on 11 July 2002, as recorded in Mr Wallace’s note,[83] that he assumed the lift must have moved to cause Mr Shirreff to slip on the ladder and fall. He agreed that he told Mr Wallace that he did not actually see the lift move and it was an assumption on his part. He agreed that it was speculation on his part that the lift had moved.[84] It was put to Mr Tieffel that the words Mr Shirreff said were not actually, “The lift’s coming down”. As discussed above, Mr Tieffel agreed that he was mistaken about hearing these words.
[83]Exhibit D 8.
[84]Tr 653 line 16.

Elazac submits that I should not accept Mrs Shirreff’s evidence unless it is corroborated. Initially, she gave evidence that all her husband told her was that he fell off the ladder and he was not prepared to say any more. This was shown to be false in her cross examination. Mrs Shirreff ultimately admitted that her husband had told her all the details of the accident that she put in the claim form.

Mr Wallace’s evidence that Mr Shirreff told him that he fell off the ladder because his injured hand in the cast slipped while he was descending was not challenged. I do not accept Mr Shirreff’s evidence that he did not speak to Mr Wallace but only answered his questions by head movements.

Elazac contends that Mr Shirreff’s case that somebody went up to the control room and switched on the isolator switch was inherently unlikely. Mr Shirreff accepted that such a person would need a security pass to get to the ninth floor. He accepted that the only persons likely to be up there would be an electrician or lift mechanic and as far as he knew no such persons were in the building.

Elazac submits that Mr Shirreff claimed that he had no medical problems in 2002 before the accident. Dr Russo, his general practitioner, gave evidence of him being on medication and having other medical problems. Elazac contends this tends to undermine his credibility.

It was put to Mr Shirreff, consistently with his affidavit, that he descended the ladder with the intention of working on the faulty light. Elazac claims that Mr Shirreff was evasive in his answers and was reluctant to admit that the accident happened for that purpose when he was descending the lift. Elazac claims that he was reluctant to admit that he fell off the ladder when he was attending to something Mr Morgan had not asked him to attend to but which he was doing on his own volition.

Elazac contends that Mr Shirreff changed his evidence about the conversation he had with Mr Morgan some time before the accident about whether he could fix lifts. Initially he said that when he told Mr Morgan, “I have worked on them”, Mr Morgan said, “That’s all I wanted to know”.[85] Subsequently, he says Mr Morgan’s response to that was, “Get out of here”.[86] I place no weight on this submission.
[85]Tr 59 line 17.
[86]Tr 126 line 3.

MR SHIRREFF HAS NOT ESTABLISHED HE WAS STRUCK BY THE LIFT

I did not find Mr Shirreff’s evidence on the cause of the accident to be reliable. I accept that he has been through a terrible ordeal and indulgence should be extended to him because of the shock and trauma he suffered. Nevertheless, he failed to satisfactorily explain why he gave (on his case) a false version of how the accident happened to his wife and to Mr Wallace. One could understand him not wanting to talk about the accident. To my mind, however, that does not adequately explain giving a false account of the accident.

The evidence shows that Mr Shirreff has been confused about the cause of the accident. This is understandable in view of the traumatic injuries he suffered in what must have been a terrifying experience. In his affidavit he affirmed that the wrong lift isolation switch was isolated. That was his belief at the time he affirmed that affidavit. He has since come to the conclusion that the other lift was moving and the isolation switch to lift No 2 was not isolated. The other inconsistencies between the affidavit and his evidence again show a confused recollection of what took place. As indicated above, Mr Shirreff’s belief that he was hit by the descending lift car may have been reinforced by what Mr Richard Kelsey told him of what Mr Tieffel claims to have heard. I have no found Mr Tieffel’s initial claims that he heard Mr Shirreff say as much are unsustainable. Another indicator of his confused recollection is the fact that he was uncertain as to whether he or Giles took the call from Mr Lawler that the lift had been isolated.

I mention these matters as I do not find that Mr Shirreff has knowingly sought to mislead the court. Rather, I believe that by a combination of factors he has sought to reconstruct what happened and in doing so has convinced himself that he was hit by a descending lift car. The objective and contemporaneous evidence suggests otherwise.

I consider that the most likely version of the accident is that which Mr Shirreff told to Mrs Shirreff, which she repeated in the WorkCover claim and Mr Shirreff confirmed to Mr Wallace shortly after. This evidence is supported by the lack of damage to the ladder and to Mr Shirreff’s head. I also rely on the other matters put by Elazac which I have not otherwise rejected.

Accordingly, I find that Mr Shirreff was injured when descending the ladder when his grip with his left hand in the cast slipped and he fell sustaining the injuries that he did. I am not satisfied that Mr Shirreff was struck by a descending lift. However, that does not resolve the question of negligence.

WAS MR SHIRREFF AN EMPLOYEE?

Mr Shirreff contends that he was an employee of Elazac whilst Elazac claims he was an independent contractor. Historically, the relationship of employer and employee was characterised as a relationship of master and servant. It is now commonly described as employer and employee. Whatever its nomenclature, it is, however, a relationship of service that is being described. That characteristic is determined by the totality of the relationship between the relevant parties which involves not only a consideration of the contractual relations between them but also how the parties in practice conducted themselves one to the other.

An employer owes a non-delegable duty to an employee to exercise reasonable care in providing a safe place of work and a safe system of work. The standard of care owed to an independent contractor is normally not quite as high as he is normally responsible for the safety of his own system of work.

As I discuss below, a prominent factor in determining the nature of the relationship between a person who engages another to perform work and the person so engaged is the degree of control which the former can exercise over the latter: Stevens v Brodribb Sawmilling Co Pty Ltd.[87] A relevant factor may be the actual exercise of that control, but the more important factor is the right of the employer to exercise it. In Humberstone v Northern Timber Mills,[88] Dixon J said:

The question is not whether in practice the work was in fact done subject to a direction and control exercised by an actual supervision or whether an actual supervision was possible but whether ultimate authority over the man in the performance of his work resided in the employer so that he was subject to the latter's order and directions.

[87](1986) 160 CLR 16 at 24 per Mason J (Stevens’ case).

[88](1949) 79 CLR 389 at 404 (Humberstone’s case).

Mason J in Stevens’ case[89] explained that the test which laid emphasis on control may have been more suited to the social conditions of earlier times when a person engaging another to perform work could and did exercise closer and more direct supervision than is possible in current times.[90] Mason J said that “in modern post-industrial society, technological developments have meant that a person so engaged often exercises a degree of skill and expertise inconsistent with the retention of effective control…”.[91] Mason J explained how the law now dealt with this change in social and economic circumstances:

All this may be readily acknowledged, but the common law has been sufficiently flexible to adapt to changing social conditions by shifting the emphasis in the control test from the actual exercise of control to the right to exercise it, "so far as there is scope for it", even if it be "only in incidental or collateral matters" (Zuijs v. Wirth Brothers Pty Ltd.[92] Furthermore, control is not now regarded as the only relevant factor. Rather it is the totality of the relationship between the parties which must be considered.[93]

[89](1986) 160 CLR 16 at 28.

[90]See also discussion in Hollis v Vabu Pty Ltd (2001) 207 CLR 21 at [43] per Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ where they also cite with approval Glass, McHugh and Douglas, The Liability of Employers in Damages for Personal Injury, (1979, 2^nd ed), pp 72-3.

[91](1986) 160 CLR 16 at 28-9.

[92](1955) 93 CLR 561 at 571 (Wirth’s case).

[93](1986) 160 CLR 16 at 29; cited with approval in Hollis v Vabu Pty Ltd (2001) 207 CLR 21 at [44] per Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ (Hollis’ case).

Another relevant factor in determining whether the person engaged is an employee or an independent contractor is whether the contract is for the supply of the work and skill of a man or the supply of equipment or its performance. In Humberstone’s case[94] Dixon J said:

In the present case the contract by the deceased was to provide not merely his own labour but the use of heavy mechanical transport, driven by power, which he maintained and fuelled for the purpose. The most important part of the work to be performed by his own labour consisted in the operation of his own motor truck and the essential part of the service for which the respondents contracted was the transportation of their goods by the mechanical means he thus supplied. The essence of a contract of service is the supply of the work and skill of a man. But the emphasis in the case of the present contract is upon mechanical traction. This was to be done by his own property in his own possession and control. There is no ground for imputing to the parties a common intention that in all the management and control of his own vehicle, in all the ways in which he used it for the purpose of carrying their goods, he should be subject to the commands of the respondents.

[94](1949) 79 CLR 389 at 404-5.

Other factors include whether or not the person engaged can set their own hours of work, the method of payment and in particular whether payment is determined by hours of service or output or production; whether or not income tax is deducted and superannuation paid, whether or not the person engaged employed employees and conducts his business in partnership. In Australian Mutual Provident Society v Chaplin[95] Lord Fraser of Tullybelton delivering the judgment of the Privy Council said “It may not be absolutely inconsistent with a relationship of master and servant that the alleged servant should be a partnership, but it would certainly be unusual”. Another relevant factor is whether or not the person engaged considered the relationship as one of independent contract.[96]
[95](1978) 18 ALR 385 at 391 (AMP v Chaplin).
[96]Steven’s case at 26 per Mason J.

The power to delegate is also an important factor in determining whether or not a person is an employee or an independent contractor. In AMP v Chaplin[97] the Privy Council said in considering whether a representative commission agent for the AMP Society was an employee:

In the opinion of their Lordships this power of unlimited delegation is almost conclusive against the contract being a contract of service [citation omitted].

[97]AMP v Chaplin at 391; cited with approval in Steven’s case at 26 per Mason J.

The proper classification of a contractual relationship is to be determined by the totality of the relationship between the parties and not by the label that the parties put on the relationship.[98] In R v Foster; Ex parte Commonwealth Life (Amalgamated) Assurances Ltd[99] the High Court of Australia considered whether persons engaged by an insurance company to canvass and collect premiums of insurance were “employees” of the insurer for the purposes of the Conciliation and Arbitration Act 1904-1951. The written contract between the company and the agents specified that the relationship between them was not that of employer and employee but strictly that of principal and agent. The plurality, Dixon, Fullagar and Kitto JJ, said in relation to this attempt to characterise the relationship:

Provisions of this character are perhaps more likely to arouse misgivings as to what the practical situation of the agent may be in fact than to prevent a relation of master and servant being formed.
For, if in practice the company assumes the detailed direction and control of the agents in the daily performance of their work and the agents tacitly accept a position of subordination to authority and to orders and instructions as to the manner in which they carry out their duties, a clause designed to prevent the relation receiving the legal complexion which it truly wears would be ineffectual.[100]

[98]Hollis’ case at [58] citing with approval TNT Worldwide Express (NZ) Ltd v Cunningham [1993] 3 NZLR 681 at 699 and R v Foster; Ex parte Commonwealth Life (Amalgamated) Assurances Ltd (1952) 85 CLR 138 at 150-1 (Foster’s case).

[99](1952) 85 CLR 138 at 150-1.

[100]Foster’s case at 151.

It is significant to observe that the Court recognised the importance of the relationship between the parties “in practice” in determining whether or not the relationship of master and servant existed. The Court also referred to the agent “tacitly” accepting “a position of subordination to authority”.

In Hollis v Vabu Pty Ltd[101] the High Court of Australia considered whether a cyclist courier was an employee or an independent contractor for the purpose of ascribing vicarious liability to the courier company. The Court placed considerable stress on the purpose for which the characterisation of the relationship was made. The Court, nevertheless, considered whether “as a practical” matter the bicycle couriers were running their own business or enterprise, which again emphasised the substance of the relationship over its form.[102]
[101](2001) 207 CLR 21 at [44] per Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ (Hollis’case).
[102]Hollis’ case at [47] per Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ.

In Zuijs v. Wirth Brothers Pty Ltd[103] the High Court of Australia considered whether a trapeze artist performing in a circus was an employee of the circus proprietor under the New South Wales Workers Compensation Act 1926-1948. It was argued for the circus that the acrobat was not an employee as the circus proprietor did not control the manner in which the trapeze act was performed by the acrobat. The plurality, Dixon CJ and Williams, Webb and Taylor JJ, rejected this argument. They accepted that certain employees have special skills that are not subject to control by their employer, but other incidental and collateral matters of their employment are. They held that it is the assessment of the totality of their relationship that determines whether they are employees and not a narrow test of whether their special skills can be subject to control and direction. They said:

The duties to be performed may depend so much on special skill or knowledge or they may be so clearly identified or the necessity of the employee acting on his own responsibility may be so evident, that little room for direction or command in detail may exist. But that is not the point. What matters is lawful authority to command so far as there is scope for it. And there must always be some room for it, if only in incidental or collateral matters. Even if Mr. Phillip Wirth could not interfere in the actual technique of the acrobatics and in the character of the act, no reason appears why the appellant should not be subject to his directions in all other respects.
Assuming that the terms of the engagement fixed the character of the act and that from its very nature an acrobatic performance must be executed upon the unhampered responsibility of the performers, that does not remove the relationship from the category of master and servant. There are countless examples of highly specialized functions in modern life that must as a matter of practical necessity and sometimes even as a matter of law be performed on the responsibility of persons who possess particular knowledge and skill and who are accordingly qualified. But those engaged to perform the functions may nevertheless work under a contract of service. In the present case what has been proved in evidence all points to the conclusion that the relation between the parties was that of master and servant. If the power of selecting the person engaged must exist in the master in order that the contract may be one of service, that element was certainly present. If the fact that the remuneration takes the form of wages is a mark of the relationship, that was the case here. If a right in the master to suspend or dismiss for misconduct is something to be looked for, then again there could be little doubt that the appellant was subject to that discipline. If a right to superintend and control the manner in which the servant fulfils his obligation must exist in some degree, a little consideration will show that the daily relations of a performer playing a regular part in the work of such an organization as a travelling circus would demand a large measure of control and superintendence. With reference to the act itself there are many subsidiary matters. The place it took upon the programme, the measures of safety to be observed, the number, time and manner of the rehearsals, the costume of the performers, the place where they dressed and their conduct both before the audience and otherwise, these are all matters naturally calling for control. The grand parade doubtless involved no inherent difficulty but one may suppose that it was necessary to exercise control and direction as to the manner in which it was done. Apart from the two central duties of performing the act and taking part in the grand parade, the incidents of the relation between a regular performer and a touring circus must cover a wide field of conduct calling for superintendence and control.[104]

Further, Elazac failed in its duty to exercise reasonable care to provide a safe place of work. The lift shafts were not serviced by qualified lift maintenance people. The lights in the lift shaft were not working and it appears the accident happened whilst Mr Shirreff was on the ladder with the lights out. I find this failure also contributed to Mr Shirreff’s fall. If he lost his grip in the dark, which I found probably happened, it is likely he would have found it more difficult to save himself in the pitch black lift shaft.

WAS ELAZAC’S BREACH OF DUTY A CAUSE OF MR SHIRREFF’S INJURIES?

In my opinion, the breach of duty of Elazac was a cause of Mr Shirreff’s injuries. If Elazac had exercised reasonable care, Mr Shirreff would not have exposed himself to the risk of falling from the ladder due to his incapacitated arm. I find on the balance of probabilities that Mr Shirreff’s incapacitated arm and inadequate lighting were each a cause of him falling from the ladder and sustaining the injuries that he did.

MR SHIRREFF’S OTHER CLAIMS

Mr Shirreff also claims that Elazac is liable to him even if he was not an employee but instead a contractor as alleged in Elazac’s defence. These claims are on two bases: first that even as a contractor Elazac owed a duty of care to him that was breached by its negligence. Secondly, Mr Shirreff claims that Elazac breached the duty of care it owed to Mr Shirreff as an occupier of 401 Collins Street, Melbourne.

The first claim arises out of the principle referred to by Mason J in the High Court of Australia in Stevens’ case that an entrepreneur that engages an independent contractor to do work which might as readily be done by employees in circumstances where there is a risk to them of injury arising from the nature of the work and where there is a need for the entrepreneur to give directions as to when and where the work is to be done and to co-ordinate the various activities, he has an obligation to prescribe a safe system of work.[168] Also, in that case, Wilson and Dawson JJ expressed the view that a principal may have a non-delegable duty of care to co-ordinate activities between separate contractors working on the same work site.[169]
[168]Steven’s case at 31 per Mason J with whom Deane J agreed.
[169]Ibid at 45-6.

In view of my finding that Mr Shirreff was an employee, I do not need to decide this issue. My preliminary view is that this claim may have difficulties as Mr Shirreff’s injuries did not arise from the activity of another contractor or contractors on the site or through a failure of co-ordination but rather through his use of the ladder.

The second claim is under occupiers’ liability which is now governed by the Wrongs Act 1958. In view of my finding that Mr Shirreff was an employee, I do not need to decide this issue. I do not recall any final submissions being made by the plaintiff on this claim. Without the benefit of argument, my preliminary view is that the claim may not have been able to be made out. Section 14B(3) imposes a duty of care to see that any person on the premises will not be injured or damaged “by reason of the state of the premises or of things done or omitted to be done in relation to the state of the premises”. I have found that the accident occurred through the use of Mr Shirreff’s ladder not through the state of the premises.

As raised in the statement of claim, Mr Shirreff relies on a breach or breaches by Elazac of the Occupational Health and Safety Act 1985. Breaches of the Act do not by themselves create a statutory cause of action.[170] Mr Shirreff does not plead a breach of any statutory duty. Mr Shirreff, however, relies on the non compliance by Elazac of the obligations imposed on Elazac under the Act and regulations as evidence of a breach of duty otherwise owed to Mr Shirreff at common law. As discussed above, the law does accept that legislative requirements have an impact on the required conduct of an employer to exercise reasonable care in carrying out its duties to its employees.[171] In view of the fact that I have found a breach of the common law duty of care it is unnecessary for me to rule on these submissions.
[170]Occupational Health and Safety Act 1985 s 28.
[171]Bankstown Foundry Pty Ltd v Braistina (1986) 65 ALR 1 at 7 per Mason, Wilson and Dawson JJ.

WAS MR SHIRREFF CONTRIBUTORILY NEGLIGENT?

Section 26(1) of the Wrongs Act 1958 provides:

(1) If a person (the claimant) suffers damage as the result partly of the claimant's failure to take reasonable care (contributory negligence) and partly of the wrong of any other person or persons—
(a) …
(b) the damages recoverable in respect of the wrong must be reduced to such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage.

Elazac bears the burden of establishing on the balance of probabilities, that Mr Shirreff’s injuries have been a result partly of his failure to take reasonable care. An employee will be guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonable and prudent man, he would expose himself to risk of injury. His conduct, however, must be judged in the context of a finding that the employer had failed to use reasonable care to provide a safe system of work, thereby exposing him to unnecessary risks. The employer is required to take into account that employees may be inattentive, careless and foolish. However, in considering whether the employee has been contributorily negligent, the law distinguishes between conduct of the employee that amounts to mere inadvertence, inattention or misjudgment on the one hand or negligence rendering him responsible in part for the damage on the other.

These principles were laid down by the High Court of Australia in Bankstown Foundry Pty Ltd v Braistina:[172]

The law is that the damages recoverable by the respondent by reason of the fault of the appellant "shall be reduced to such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage": Law Reform (Miscellaneous Provisions) Act 1965 (NSW) s 10(1). A worker will be guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonable and prudent man, he would expose himself to risk of injury. But his conduct must be judged in the context of a finding that the employer had failed to use reasonable care to provide a safe system of work, thereby exposing him to unnecessary risks. The question will be whether, in the circumstances and under the conditions in which he was required to work, the conduct of the worker amounted to mere inadvertence, inattention or misjudgment, or to negligence rendering him responsible in part for the damage [citation omitted].

[172](1986) 65 ALR 1 at 8 per Mason , Wilson and Dawson JJ.

In drawing a distinction between mere inadvertence or error of judgment and an employee recklessly disregarding his own safety, the following cases disclose that an important issue is whether or not the employee was carrying out an instruction or acting contrary to his instructions. Also relevant is the acceptance by his employer of the risk he was undertaking.

In Davies v Adelaide Chemical and Fertilizer Co Ltd,[173] Dixon J considered the issue of whether an employee who greased rollers on a slow moving conveyor belt was contributorily negligent in doing so rather than having the conveyor belt stopped before greasing the rollers. He accepted that the practice did involve some degree of risk although it was not highly dangerous. He said, amongst other matters, that the employee was not guilty of negligence as he was not acting contrary to any instruction. He said:

In fact, though the practice did involve some degree of risk, it was not highly dangerous and, as between stopping the belts or greasing them in motion, the inconvenience to the factory of stopping the belts might easily be regarded as outweighing the risk. At all events, I think that in following such a practice at the time of the accident the plaintiff was not guilty of such negligence as to disentitle him to recover, because he was not acting contrary to any rule, instruction, advice or practice made, given or established by the defendant as his employer or in his own interest or for his own convenience but, on the contrary, was performing his duties according to his habitual and long-standing practice for which he had the apparent, and, as I think, actual approval of the factory management who treated it as part of his ordinary work.

[173](1946) 74 CLR 541 at 551-2.

Although Dixon J’s decision was in a case where contributory negligence was a complete defence, it was followed by the Full Court of the Supreme Court of Victoria in a case where contributory negligence was not a complete defence in Prestinenzi v Steel Tank & Pipe Consolidated Pty Ltd.[174] See also Mayhew v Lewington’s Transport Pty Ltd[175] where the Court of Appeal cited the decision of Dixon J with approval.
[174][1981] VR 421 per Kaye J, with whom McGarvie J agreed.
[175][2010] VSCA 202 (Mayhew’s case).

In Sungravure Pty Ltd v Meani,[176] Windeyer J considered the issue of contributory negligence in a claim by an injured employee. He accepted, amongst other matters, some taking of risk as excusable and not incompatible with the conduct of a reasonable and prudent man. He cited with approval the words used by Lord Keith of Avonholmin in John Summers & Sons Ltd v Frost:[177]

There is no question here of disobedience to orders, or of reckless disregard by a workman of his own safety. At most there was a mere error of judgment by the plaintiff as to how the work on which he was engaged could best be carried out, and possibly only a mere momentary inadvertence.

[176](1964) 110 CLR 24 (Sungravure’s case).

[177][1955] AC 740 at 777.

Windeyer J went on to say:

Nothing said since 1856 has made less true the simple statement of Alderson B. in Blyth v. Birmingham Waterworks Co.: "Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do". Whether a person was negligent in that sense must be determined in every case in the light of all the circumstances. When a worker in a factory is alleged to have been wanting in care for his own safety, the jury may, of course, as part of the totality of circumstance, have regard to such things as inattention bred of familiarity and repetition, the urgency of the task, the man's preoccupation with the matter in hand, and other prevailing conditions. They may consider whether any of these things caused some temporary inadvertence to danger, some lapse of attention, some taking of a risk or other departure from the highest degree of circumspection, excusable in the circumstances because not incompatible with the conduct of a prudent and reasonable man [citations omitted].[178]

[178]Sungravure’s case at 36-7.

Windeyer J’s judgment was cited with approval in McLean’s case,[179] where the High Court dealt with an allegation of contributory negligence against the dustman running across the road as follows:

The issue of contributory negligence presents a little more difficulty, as the primary judge acknowledged. However, we are inclined to think that the difference between the approach adopted by the Full Court and that adopted by the primary judge largely reflected the difference in attitude to Brambles' responsibility in providing a safe system of work. The issue of contributory negligence has now to be approached on the footing that Brambles failed to discharge its obligation to provide a safe system, that is, to take appropriate precautions against the risk of injury arising from the motorist's negligence and the employee's failure to observe an oncoming vehicle as he carried out his allotted task. The question is whether that failure should be characterized as mere inattention or inadvertence or whether it amounts to negligence, there being a well recognized distinction between the two. It is accepted that in considering whether there was contributory negligence by an employee in a case in which the employer has failed to provide a safe system of work, the circumstances and conditions in which he had to do his work must be taken into account. And the issue of contributory negligence is essentially a question of fact.
As Windeyer J. observed in Sungravure (at p.37), when an employee in a factory sustains injury, the jury in considering contributory negligence may have regard to "inattention bred of familiarity and repetition, the urgency of the task, the man's preoccupation with the matter in hand, and other prevailing conditions". It is then for the tribunal of fact to determine whether any of these things caused some temporary inadvertence, some inattention or some taking of a risk, "excusable in the circumstances because not incompatible with the conduct of a prudent and reasonable man". His Honour went on to reject the suggestion that the approach applicable in the case of injury sustained in a factory was inapplicable to activities elsewhere, specifically referring to activities upon a highway.
In concluding that the appellant's conduct amounted to mere inadvertence, inattention or misjudgement, the following factors have impressed us as being significant: (a) the prevailing condition of poor light unquestionably diminished his ability to pick out the vehicle and locate its speed and position accurately; (b) performance of his task necessarily involved preoccupation with the matter in hand; (c) at the relevant time he was carrying on his right shoulder a humper whose capacity ranged between four and eight household garbage deposits; (d) the carrying of this humper on his right shoulder when running across the road would very considerably restrict his capacity to observe an oncoming vehicle and assess its speed accurately; and (e) in order to retain his employment as a garbage collector he was expected to run across the road and keep up with the truck as it moved forward. In these circumstances the primary judge was correct in concluding that the appellant was not guilty of contributory negligence.

[179](1984) 155 CLR 306 at 315-6 per Mason, Wilson, Brennan and Dawson JJ.

Windeyer J’s judgment was also cited and applied by the High Court in Commissioner of Railways v Ruprecht.[180] That case is instructive as Gibbs J with whom Stephen J agreed relied on the principles stated by Windeyer J in Sungravure’s case to find that the injured worker had not been contributorily negligent whereas Mason and Wilson JJ also relied on Windeyer J’s statement of principle to find that the injured worker was contributorily negligent. It is clear that the distinction between a worker failing to exercise the standard of care of a reasonable and prudent man for his own safety and the worker’s actions merely amounting to inadvertence, inattention or misjudgment falling short of negligence is not always easy to discern.
[180](1979) 142 CLR 563 at 568 per Gibbs J, with whom Stephen J agreed (Ruprecht’s case).

Mason J said that like the standard of care in negligence, contributory negligence depends on foreseeability and is that of a reasonable and prudent man so that “a defendant is guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonable and prudent man, he would expose himself to risk of injury”.[181] However, as Mason J said, “the courts have taken into account a variety of factors which have a tendency to excuse the employee for inattention to his personal safety”.[182]
[181]Ruprecht’s case at 570, citing Sungravure’s case at 37.
[182]Ruprecht’s case at 570-1.

Recently the Court of Appeal addressed the issue of contributory negligence in Mayhew v Lewington’s Transport Pty Ltd.[183] This judgment thoroughly considers these cases and extracts the relevant principles in deciding contributory negligence. In that case the appellant was injured while descending a ladder at the back of his prime mover. The court said that the position and alignment of the ladder and size of the steps was patently deficient.[184] The court found the accident that occurred was one of a kind that was inevitable that would occur at some time. The appellant was performing a task that he regularly was required to do as part of his duties. The Court held it was a “classical” case of mere misjudgment not amounting to contributory negligence.[185] He was under no disability and his injury arose merely through inadvertence falling short of exposing himself to a risk where a reasonable and prudent man would not have done so.
[183][2010] VSCA 202 per Warren CJ, Neave JA and Beach AJA (Mayhew’s case).
[184]Ibid at [36].
[185]Ibid at [35].

Applying those principles to the present case, I find that Mr Shirreff would regularly descend the lift shaft on his ladder to retrieve mobile phones and keys that had fallen into the shaft. I find that on the balance of probabilities that his employer was aware that he did so. Mr Shirreff was entrusted by Elazac with the maintenance of the lift. It was incumbent on Elazac to develop, maintain and enforce a methodology or system which would allow the lift to be serviced and maintained in a safe manner, to borrow the High Court’s words in Andar’s case. The system of work adopted by Elazac required Mr Shirreff to descend the lift shaft on his ladder from time to time. This system of work was fraught with the normal risks that apply to any person descending a ladder into a lift well. Elazac were obliged to ensure the lift well was well lit, which they failed to do. As indicated above, a safe system should have included express instructions to Mr Shirreff that he was not to enter the lift shaft on a ladder while he had a cast on his injured arm and hand.

I also have regard to the urgency of the task that Mr Shirreff was instructed to undertake. He had been instructed to fix the lift immediately. I find that Mr Shirreff was not disobeying instructions but was following the system of work sanctioned by Elazac that involved the use of a ladder with the risks that entails.

The main issue is whether or not Mr Shirreff’s use of the ladder whilst he had his injured arm and hand in a cast should be categorised as “some temporary inadvertence to danger, some lapse of attention, some taking of a risk or other departure from the highest degree of circumspection, excusable in the circumstances because not incompatible with the conduct of a prudent and reasonable man”, to use the language of Windeyer J in Sungravure’s case, or whether or not it constituted negligence on his part.

Elazac contends that the accident happened after Mr Shirreff had fixed the contacts and was descending the ladder to fix the faulty lights. Elazac argue that Mr Morgan did not instruct Mr Shirreff to fix the lights and accordingly he should be treated as being on some sort of frolic of his own. I reject that contention. It seems to me to be reasonably foreseeable that if the person in charge of maintaining the lifts discovers that the lights are not working in the lift shaft when doing another job in the lift shaft, that he might repair those lights. In any event, for Mr Shirreff to climb out of the lift shaft he needed to readjust the ladder length so that it could lean against the ground floor. To do this he had to descend the ladder as he had done when he first entered the lift well.

In my opinion, the instruction to Mr Shirreff to fix the fault immediately gave urgency to the task and induced him to take a risk that in normal circumstances he otherwise may not have. Nevertheless, Mr Shirreff was an experienced electrician. He would have had considerable experience with ladders. I think his conduct of using a ladder in a darkened lift well with an injured arm in a cast that covered in part his hand was not the conduct of a reasonable and prudent man looking after his own safety. I accept that he was merely doing something his employer demanded be attended to immediately, but that does not excuse him from his own negligence. For these reasons, I find that Mr Shirreff was contributorily negligent.

The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves first a comparison of culpability, that is the degree of departure by each from the standard of care of a reasonable man and, secondly a comparison of the relative importance of the acts of the parties in causing the damage. Bearing these two matters in mind, the Court should take into account the whole conduct of each negligent party in relation to the circumstances of the accident and compare them one to each other: Podrebersek v Australian Iron & Steel Pty Ltd.[186]
[186][1985] HCA 34; (1985) 59 ALR 529 at 533-4 and (1985) 59 ALJR 492 per Gibbs CJ, Mason, Wilson, Brennan and Deane JJ.

For a start I consider the degree of culpability of Elazac greater than that of Mr Shirreff. Elazac had cancelled the lift maintenance contracts with qualified and licensed lift maintenance companies. Elazac had imposed the duties on Mr Shirreff even though he said that he did not want to do the job. Elazac knew or ought to have known that Mr Shirreff’s experience with lifts was limited to his apprenticeship some twenty years before. Elazac was indifferent to whether or not he had the required training and experience required of licensed lift mechanics. Mr Morgan had demanded Mr Shirreff fix the faulty lift in a brusque and demanding manner which brooked no argument. Elazac had in place no system of work for the safe maintenance of the lifts. It knew Mr Shirreff had an injured left arm. It knew that he should not be using a ladder. Nevertheless, Mr Morgan gave him an order that Mr Shirreff felt bound to observe and that carried with it the possibility, if not the probability, of using a ladder.

On his part, Mr Shirreff was under pressure to do the work immediately. To call in an outside contractor would not have enabled the lift to be fixed immediately. Despite his injured left arm he felt bound to fix the lift and to do so he needed to use his ladder in the lift well. He was careless for his own safety, but its is necessary to keep in mind his instruction to fix the lift immediately.

As to the question of the relative importance of the acts and omissions of Elazac and Mr Shirreff in causing the damage, I consider that Elazac’s negligence was a greater cause than Mr Shirreff’s.

After taking account the whole conduct of each negligent party in relation to the circumstances of the accident and comparing them one to each other, I have decided that the damages recoverable by Mr Shirreff should be reduced by 20 per cent being the extent to which I think it is just and equitable having regard to the plaintiff’s share in the responsibility for the damage.

WHAT DAMAGE DID MR SHIRREFF SUSTAIN BY REASON OF HIS INJURIES?

Mr Shirreff’s injuries as a result of the accident are as follows:

· Open compound fracture dislocation of the right ankle with development of osteomyelitis, septic arthritis, plantar fascilitis, arthritis of the talonavicular and calcaneocuboid joints with deformity and dysfunction;

· Injury to his right hand with displaced transverse fracture of the fourth metacarpal and rupture of the extensor digiminimi tendon;

· Fractured right wrist;

· Injury to the spine resulting in fracture of the thoracic vertebrae 1-5 loss of function, pain and disability;

· Injury to the right hip;

· Injury to the left foot with fracture of the left ankle;

· Injury to the right shoulder;

· Consequential injury to the right knee upon weight bearing during rehabilitation with internal ligamentous disruption, arthritis and pain and dysfunction and;

· Psychiatric disorder including Post Traumatic Stress Disorder, depression and Major Depressive Disorder and anxiety.

I understand there is no dispute about the physical injuries nor that his injuries include psychiatric injuries. What is in dispute is whether his injuries will deny him the opportunity to undertake gainful employment in the future and whether they have done so in the past.

In September 2006, Mr Shirreff was referred by his treating doctor to Professor Graham Burrows, psychiatrist. In his report of 12 November 2007,[187] he was of the opinion that Mr Shirreff had a Major Depressive Disorder with anxiety, chronic pain and physical injuries. He said he had no doubt Mr Shirreff suffered from Post-Traumatic Stress Disorder, anxiety and depression and is phobic. He was of the opinion that these were caused by the accident. He was of the opinion that Mr Shirreff did not have current work capacity. He noted that Mr Shirreff was keen to return to work. He said however that Mr Shirreff still continues to have major disorders and pain problems. He said he was hopeful that Mr Shirreff would improve. On whether he believed that Mr Shirreff had current work capacity, he believed that the problems would persist “indefinitely”. He said that does not mean that in the future he may not be able to work. Professor Burrows was not cross examined. His various reports were tendered by consent.
[187]Exhibit P 20.

A further report of Professor Burrows of 1 September 2009 was tendered.[188] That report referred to Mr Shirreff taking a major overdose of medication and being admitted to the Royal Melbourne Hospital. He referred to his earlier report of 12 November 2007 and added “Lynton [sic] obviously has ongoing problems and despite major attempts he still has continuing difficulties attending court cases”.
[188]Exhibit P 21.

In his third and final report of 12 July 2010, Professor Burrows gave his general prognosis as:

From a psychiatric point of view he continues to suffer from significant anxiety, depression and chronic pain. I believe that will continue. He is currently undergoing once again a change in his antidepressant medication in attempts to improve his mental state.[189]

He was of the opinion that Mr Shirreff would continue to experience longstanding difficulties.

[189]Exhibit P 22.

A report of Dr Clayton Thomas, a consultant in rehabilitation and pain medicine, dated 19 November 2007 was tendered.[190] He had seen Mr Shirreff three times in 2003. He then formed the view that if Mr Shirreff had an amputation, it was unlikely that he would return to work as an electrician. He recommended retraining. He felt that Mr Shirreff presented as an intelligent man who cognitively would have been able to make the transition into other forms of work, pending the impact of his ongoing physical condition. As he had not seen Mr Shirreff for some time, he was not able to give a prognosis.
[190]Exhibit P 23.

Two reports from Ms Zineta Dedovic of 24 January 2004 and 22 November 2007 were tendered.[191] By the latter report, Ms Dedovic had had 33 counselling sessions with Mr Shirreff. She recites his injuries and that soon after the accident he began experiencing Post Traumatic Stress Disorder.
[191]Exhibits P 24 and 25.

She recorded:

Mr Shirreff has been desperately trying to find vocational options to pursue, even though in my opinion he has not been ready to return to work on a full time capacity because of symptoms of Post Traumatic Stress Disorder and ongoing depression. A friend had asked Mr Shirreff to do some casual administration work for him and Mr Shirreff had taken the opportunity to try and get back into work. However, he reported that being in a workplace only resulted in him feeling worse about himself, as he felt that his inadequacies and shortcomings were highlighted. He felt that he would never get past this stage of part time, limited employment and felt despair that he perceived he could no longer undertake useful work or earn a decent living for his family.

Her prognosis is that Mr Shirreff would require long term ongoing counselling to address his issues and that Mr Shirreff’s condition had not stabilised.

Dr Nathan Serry conducted an independent psychiatric examination on Mr Shirreff on 30 October 2009.[192] It is an extensive report of his injuries and his prognosis. He reported that Mr Shirreff’s psychiatric condition had stabilized but there was a risk of further deterioration. He was of the opinion that he would continue to need expert psychiatric treatment. He was of the opinion that Mr Shirreff was entirely unfit for pre-accident employment and there are profound limitations in relation to his future capacity.
[192]Exhibit P 27.

A report of 1 July 2010 of Mr Russell Miller, orthopaedic surgeon, was tendered by Mr Shirreff.[193] He was of the opinion that Mr Shirreff will effectively have a lifelong requirement for significant ongoing medical and surgical treatment. Mr Shirreff’s injuries have substantially stabilized. His injuries are permanent. They are unlikely to repair or mend. Ongoing deterioration is likely.
[193]Exhibit P 28.

He was of the opinion that Mr Shirreff is not fit for pre-injury work and he does not envisage a return to work. He said that Mr Shirreff has no significant residual work capacity for either full time or part time work. He says his injuries will have a major impact on social, domestic, recreational and employment activities in an ongoing way. His injuries are at the very severe end of the spectrum.

Mr Shirreff tendered five reports of Professor Kenneth Myers, a general surgeon, the last of which was given on 26 August 2008.[194] He was of the opinion that Mr Shirreff did not currently have the capacity to work. It offers little assistance about the future.
[194]Exhibits P 32, P 33, P 34, P 35 and P 36.

Mr Shirreff tendered a report of Mr Brenan J Dooley, orthopaedic surgeon, who conducted an independent impairment assessment/physical examination of Mr Shirreff for Gallagher Basset Services.[195] He advises that Mr Shirreff should not amputate his right leg and foot. He said that he has a sensate foot in good position. He says that the probabilities are that in the future he will appreciate that he is far better off not having his right lower leg and foot amputated unless serious complications result.
[195]Exhibit P 37.

Elazac tendered medical and other reports from Dr Michael Troy of 19 June 2003,[196] Ms Judith McKenzie, orthopaedic specialist, of 8 December 2003,[197] Dr Mark Cunningham, psychiatrist, of 6 May 2004,[198] Dr Timothy Entwisle, consultant psychiatrist, of 21 April 2006,[199] Dr N R Rose, psychiatrist, of 14 April 2008,[200] a report of Crosslinks of 25 January 2004,[201] a report of IWCC, entitled “vocational assessment report” of 15 December 2005,[202] and a report of CoWork Pty Ltd entitled “assessment of occupational capacity” of 28 October 2009.
[196]Exhibit D 12.
[197]Exhibit D 13.
[198]Exhibit D 4.
[199]Exhibit D 15.
[200]Exhibit D 16.
[201]Exhibit D 17.
[202]Exhibit D 18.

The last report is the most recent report on Mr Shirreff relied on by Elazac. The report states that Mr Shirreff has attempted to find alternative employment including building switch boards and debt collection. It says he has also commenced to study with Gippsland TAFE upgrading his skills and was approached by TAFE to work as a vocational teacher. It says he has previously expressed a motivation to return to work, commenting to medical specialists that he believes he can do office work and has retrained with the electrical field.

In CoWork’s executive summary, they concluded that “CoWork have identified possible training options and self paced, light and part time based work for Mr Shirreff’s graduated progression back to work including: Occupational Health and Safety Officer, Body Corporate Manager and Electrical Estimator”.

Mr Shirreff was asked about his future and said that he did not think there was much of one. He said he thought his foot would have to be amputated. He said that he did not consider he was employable in his current psychiatric state.[203] When asked what it is about his psychiatric state that inhibits his employment capacity, he said “lack of patience, irritable, aggressive and angry”.[204]
[203]Tr 203.
[204]Tr 204.

Mr Slater, the orthopaedic surgeon who performed the fusion on 31 May 2006 was called by Mr Shirreff. He informed the court that on the last occasion he saw Mr Shirreff on 10 May 2010, consideration was given to the amputation of Mr Shirreff’s leg below the knee to relieve the pain experienced by Mr Shirreff. He believed that without amputation the pain would very likely remain the same.[205] He also said that if the amputation took place, that as the pain he experienced was neuralgic pain, the pain may move to his knee. He said the risk of that was 30 to 40 per cent. Under cross examination he mentioned the presence of an element of psychosomatic conditions relating to Mr Shirreff. He agreed that such a condition magnifies his complaints beyond what one would expect from purely psychical terms.[206]
[205]Tr 490.
[206]Tr 484.

Mr Shirreff gave evidence that he has accepted that the amputation of his foot is inevitable.[207]
[207]Tr 198.

Mr Slater said that he believed that Mr Shirreff had some capacity to work in a job of sedentary nature but not a job that required him to be on his feet.[208] He did say, however, that if he was able to manage without narcotic analgesics his capacity to concentrate and function would be better than if he was taking them.[209]
[208]Tr 493.
[209]Ibid.

ASSESSMENT OF MR SHIRREFF’S DAMAGES: PAIN AND SUFFERING

Mr Shirreff is entitled to damages for pain and suffering and loss of enjoyment of life as a result of the injuries he suffered in the fall including his subsequent psychiatric injuries. The pain and suffering has been unrelenting and severe and will continue into the future. He is in constant pain. Although he can walk on his damaged right foot, he can only do so on a special shoe. He is unable to participate in many social activities. He can no longer play sport, or effectively play with his eight children.

The accident itself was extremely traumatic. He experiences flashbacks and suffers from depression and anxiety. He has attempted suicide and has suicidal feelings. He feels like a failure to himself and his family. The injuries that he is suffering are canvassed above.

Mr Shirreff’s counsel Mr Tobin suggested a figure of $450,000. Mr Curtain for Elazac did not suggest a figure although conceded that Mr Shirreff’s injuries were substantial. I consider an appropriate allowance is $400,000 for pain, suffering and the loss of amenities of life and assess his damages accordingly.

I deduct 20 per cent for Mr Shirreff’s contributory negligence making the total $320,000.

LOSS OF EARNING CAPACITY

I accept that Mr Shirreff has been effectively totally incapacitated since 24 June 2002. I consider that it is appropriate to take into account not just the $450 per day he was earning, but the earnings of his business.[210] I think it is appropriate to allocate only a small proportion of that business to his wife’s exertions.
[210]Husher v Husher (1999) 197 CLR 139.

The partnership earnings in the year of the accident were $159,000. Mrs Shirreff’s contribution was minimal. I accept that the appropriate earnings should be $3,000 per week. I was informed by Mr Shirreff that the tax on $3000 per week on single basis is $950. Thus his loss of income for 422 weeks is:

422 x ($3000-$950) = $865,100

I was informed by Mr Shirreff’s counsel, without demur from Mr Curtain, that the appropriate Fox v Wood allowance is:
$100,000
In addition, I allow the cost of treatment at the Mayo clinic of:
$13,281.68[211]
[211]The treatment of Mr Shirreff at the Mayo clinic in the United States of America was not met by WorkCover. The treatment successfully got Mr Shirreff back on his feet by recommending he use a specially constructed shoe.
Making a total of:
$865,000
$100,000
$ 13, 281.68
$978,281.68
As to the loss of his earning capacity in the future, I consider that the calculation should be based on retirement at 65 years of age. I also consider that a discount should be allowed for the vicissitudes of life, such as early death, other injuries and the like. I also consider a discount should be allowed for the distinct possibility that Mr Shirreff will work again but admittedly at a lower rate than when he worked as an electrician. Taking all these matters into account I consider a discount of 40 per cent should be applied to the appropriate calculation to reach a figure for the loss of earning capacity.[212]
[212]Malec v JC Hutton Pty Ltd (1990) 169 CLR 638, 642-3.

The calculation is thus:

($3,000-$950) x 543[213] = $1,113,150

Less discount of 40 per cent = $667,890

[213]Multiplier at discount rate of 6 per cent for 16 years: see discount tables at accessed 30 August 2010.

Thus I assess pecuniary loss damages as:
$978,281.68
$667,890.00
$1,646,171.68
I have been informed by Mr Shirreff’s counsel that the maximum award before deduction under s 134AB(22) of the Accident Compensation Act 1985 for pecuniary loss damages is relevantly $1,175,000. After the 20 per cent deduction under s 26(1) of the Wrongs Act 1958, the damages for pecuniary loss are $940,000.

I will hear counsel on the final orders as to damages, interest and costs.

[2010] VSC 381

1 September 2010