Sijuk v Ilvariy Pty Limited, trading as, Craftsman Homes - [2010] NSWSC 354

CITATION: SIJUK v ILVARIY PTY LIMITED, trading as, CRAFTSMAN HOMES [2010] NSWSC 354

HEARING DATE(S): 22, 23, 24 and 25 March 2010

JUDGMENT DATE :
29 April 2010

JURISDICTION: Common Law

JUDGMENT OF: Hall J at 1

DECISION: The defendant is liable in negligence to the plaintiff for breach of duty - unsafe scaffolding.
Plaintiff's employer notionally liable (10%); Defendant liable (90%); Plaintiff 15% contributory negligent.

CATCHWORDS: NEGLIGENCE - liability of builder/occupier to employee of sub-contractor - employee to perform brick cleaning work - fell through hole of gap in the scaffolding which had not been present when inspected three days before - sub-contractor was plaintiff's wife - unsophisticated sub-contracting entity - previous contracts with the defendant - defendant knew plaintiff's wife not experienced in safety aspects of bricklaying work - plaintiff's attendance at site on a Saturday when no other employees present was a practice followed with brick cleaning - whether specific notice given by sub-contractor of plaintiff's intention to attend site - application of s.151Z Workers Compensation Act - defendant 90% - plaintiff contributory negligence 15%

LEGISLATION CITED: Civil Liability Act 2002
Occupational Health and Safety Act 2000
Occupational Health and Safety Regulation 2001
Workers Compensation Act 1987

CASES CITED: Australian Iron & Steel Pty Limited v Luna (1969) 123 CLR 305
Consolidated Broken Hill Limited v Edwards [2005] NSWCA 380
Eastside Scaffolding v Kazic [2008] NSWCA 146
Grljak v Trivan Pty Limited (1994) 35 NSWLR 82
Joslyn v Berryman [2003] HCA 34; (2003) 214 CLR 552
Pollard v Baulderstone Hornibrook Engineering Pty Limited [2008] NSWCA 99
Maricic v Dalma Formwork (Australia) Pty Limited [2006] NSWCA 174
O'Connor v S P Bray Limited (1937) 56 CLR 464
Thompson v Woolworths (Queensland) Pty Limited [2005] HCA 19; (2005) 221 CLR 234
TNT Australia Pty Limited v Christie [2003] NSWCA 47; (2003) 65 NSWLR 1
Waverley Council v Ferreira [2005] NSWCA 418; (2005) Aust Torts Reports 81-818
Wynn Tresidder Management v Barkho [2009] NSWCA 149

PARTIES: MILAN SIJUK v
ILVARIY PTY LIMITED, t/as, CRAFTSMAN HOMES

FILE NUMBER(S): SC 09/297729

COUNSEL: P: G Bateman
D: D P O'Dowd

SOLICITORS: P: Martin Bell & Co
D: James Tuite & Associates

N THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HALL J

THURSDAY 29 APRIL 2010

2009/297729

MILAN SIJUK v ILVARIY PTY LIMITED, trading as, CRAFTSMAN HOMES

JUDGMENT

HIS HONOUR:
Introduction

1 The plaintiff, by the Second Amended Statement of Claim, in these proceedings claims damages in respect of personal injury arising out of an accident that occurred on 3 April 2004.

2 At the time the plaintiff was employed as a brick cleaner by his wife, Grozdana Sijuk, trading as, Rosa’s Cleaning Service.

3 The defendant was the head contractor involved in the construction of a residential dwelling at Kentia Parade, Cherrybrook (“the site”).

4 The plaintiff alleges that on the morning of Saturday 3 April 2004, he attended at the request of the defendant’s building supervisor at the site in order to clean external brickwork on newly constructed residential premises. During the course of carrying out the work, he was working from a scaffolding that had been erected at the request of the defendant by a scaffolding sub-contractor. His case is that, whilst cleaning the brickwork from the scaffolding, he fell through a gap in the scaffolding a distance of three and a half to four metres.

5 In consequence of the accident, the plaintiff claims that he suffered injury, including, in particular, injury to his left shoulder, neck strain and injury to his low back.

6 The plaintiff also claims that, in consequence of his physical injuries, he developed a psychiatric condition, in particular, a condition of Chronic Adjustment Disorder and Severe Chronic Depression.

The case as pleaded

7 The plaintiff’s claim is based on causes of action framed in common law negligence and, breach of statutory duty. The breaches of statutory duty pleaded arise under the Occupational Health and Safety Regulation 2001 (Regulations 34, 35, 36 and 39) and of s.8(2) and s.10 of the Occupational Health and Safety Act 2000.

8 By its Defence to the Second Amended Statement of Claim, the defendant denies negligence and breach of statutory duty as alleged or at all.

9 The defendant has raised a defence of contributory negligence and further pleads the provisions s.151Z(2) of the Workers Compensation Act 1987.

10 In a document entitled Defendant’s Statement of Issues in Dispute, the defendant identified the facts which it intended to establish by way of evidence. These included:-

“(a) The Defendant was contracted … to construct a house at … Kentia Parade, Cherrybrook (NSW) (‘the site’).

(b) The construction commenced in late January 2004/early February 2004.

(c) On or about 16 March 2004, the Defendant contracted Uni-Roof (Hire) Pty Limited to supply and erect scaffolding around part of the perimeter of the premises.

(d) Uni-Roof (Hire) Pty Limited erected the scaffolding on or about 18 March 2004 and on 19 March 2004 Uni-Roof (Hire) Pty Limited verified that the scaffolding had been erected in accordance with AS1576 and AS1657.

(e) On or about 29 March 2004, the construction had reached a stage that brick cleaning was required.

(f) During the week commencing Monday 29 March 2004:-

(i) the Defendant’s Nicholas Storier (‘Storier’) telephoned either the plaintiff, or the plaintiff’s employer, Rosa, to inform that the premises were ready for brick cleaning;

(ii) Storier was not informed when the plaintiff would attend the site to clean the bricks.

(g) That Mr Mark Henderson and Mr Brett Reid were carpenters contracted by the defendant to perform works associated with the construction of the premises.

(h) On Wednesday 31 March 2004, Henderson and Reid attended the site to perform work on the eaves of the premises. They used the scaffold to perform that work.

(i) Before commencing work on 31 March 2004, Henderson and Reid inspected the scaffold by walking along its entire length. Henderson and Reid then used the scaffold to perform their works and walked along the entire length of the scaffold a number of times during the day without incident.

(j) When Henderson and Reid completed their work on 21 March 2004, the entire length of the scaffolding was intact with no corner pieces or other sections missing.

…”

11 It was the defendant’s case that on Saturday 3 April 2004, it did not have a presence on site and that it had no knowledge that any of its contractors were intending to work on the site on that day.

The plaintiff’s evidentiary case

(1) The evidence of the plaintiff

12 The plaintiff was aged 54 years as at the date of the accident and is presently aged 60 years (date of birth, 20 January 1950). He was born in Yugoslavia and arrived in Australia in 1971.

13 He thereafter undertook labouring and factory work, was employed by West Australian Railways, worked in a milk bar operated by his wife for a couple of years and thereafter worked as a builders’ labourer for a time.

14 In 1981, he was involved in a motor vehicle accident in which he sustained an injury to his back but he recovered soon after and kept working.

15 In either 1997 or 1998, he established a business which was known as M S Special Cleaning Services. The work undertaken involved the cleaning of bricks. In that work he said that he used a machine under pressure and would clean around buildings. He used a solution which contained acid in order to undertake the cleaning work.

16 In 2003, his wife, Mrs Grozdana Sijuk, commenced the business Rosa’s Cleaning Services. His evidence was that he became employed by his wife as a brick cleaner that year.

17 Mrs Sijuk said in her evidence that Rosa’s Cleaning Services commenced business on 1 July 2003. In the period 1 July 2003 to April 2004, the plaintiff worked in his wife’s cleaning business in an employed capacity.

18 The plaintiff said that up until April 2004, he had undertaken “a lot” of cleaning jobs for the defendant, Craftsman Homes, in 2003 and 2004. He said that the person he contacted in the defendant company was “the supervisor”.

19 In relation to the accident, he said that he could not recall whether the supervisor called and spoke to him or spoke to his wife about undertaking the job at Cherrybrook. Whatever occurred in that respect, he said that a facsimile from the defendant was received with details concerning his attendance at the site.

20 On Saturday 3 April 2004, he drove to the address in his utility with a trailer attached which contained brick cleaning equipment. The equipment consisted of a brick cleaning machine, a high pressure hose at the end of which was, what was described as, an apparatus “like a gun”. He said that he had acid and ladders and personal equipment such as a helmet, plastic uniform, protection equipment and gloves. He said that he also had plastic goggles.

21 When he arrived, he said there was scaffolding around the newly constructed house. He said it was his practice to work from higher to lower levels of the brickwork.

22 On the day in question, he placed a ladder against the scaffolding, took one or two boxes of acid from his utility and then assembled the equipment and located it on the scaffolding.

23 Before climbing onto the scaffolding, he said he saw a notice indicating that the scaffolding was safe.

24 The plaintiff was asked to draw a diagram indicating the point where he started and where the accident occurred. The diagram, Exhibit A, indicated the point “S” as the position where he started on the work and “F”, the position where he fell.

25 The plaintiff said that he had been working for about half an hour before the accident. He said that whilst cleaning, he was looking up to the area he was working on. He said that, at some point during the cleaning work, he remembers falling down.

26 He said “I fell through scaffolding” and ended up down below on the ground. He estimated that the scaffolding was between three and a half and four metres above ground level. When he was asked how he came to fall, he said (t.10):-

“I was holding hose and I was cleaning bricks and I was walking, and I was walking and cleaning, cleaning, and there was the hole and I fall through that hole down to the ground.”

27 When asked whether he saw the hole he said, “no I didn’t”. He said (t.10):-

“I only know that I fell down and I injured myself, but man who came to help and my wife came later, they saw missing part and they saw where I fell through.”

28 The plaintiff said that he injured himself. He said he hit his head when he fell through the scaffolding. He said he was dizzy and shaking and that his head was hurting. He saw blood on his fingers and felt pain around the mouth area. He said:-

“All my body was hurting literally and I saw bruises on my arm, shoulders, back, everything was hurting.”

29 He said that a neighbour came to him after the accident and drove him to Dural Medical Centre. About two hours later, his wife came to collect him.

30 The plaintiff said that after he returned home, his pain got worse and the next day his wife took him to Liverpool Hospital. He said that he there made complaint as to his neck, shoulders and back.

31 At some later time, he consulted his general practitioner, Dr Ramanthan. He said that he has not returned to work since the date of the accident. He said this was because he could not work due to the fact that he had undergone surgery, had pain in his back, his head was hurting and he had neck problems. He also said that he has had vertigo and dizziness and was “not good on my legs and then the pain sort of starts breaking down in my hips, my legs, I have lots of problems”.

32 He said that, prior to the accident, he felt that he was in good health. He had no problems before the accident lifting the brick cleaning equipment, which he estimated weighed about 15 kilograms.

33 In cross-examination, he said that he wore goggles whilst undertaking the brick cleaning work. He agreed that water, acid and other material would go on to the goggles during the course of work.

34 He also agreed in cross-examination that the supervisor was “Nick” which was a reference to Mr Nick Storrier. He also agreed that, in relation to previous work he had undertaken for Craftsman Homes, he may have undertaken about five particular jobs for the defendant. He confirmed his evidence to the effect that he could not recall whether the initial contact for the Cherrybrook job came to him or to his wife but he remembered receiving a facsimile which contained the Cherrybrook address.

35 He disputed that he supplied a quotation for the cleaning job according to the number of bricks, maintaining that the defendant company had “their own price”. He said “I couldn’t not give my quote. They already have that fixed”.

36 It was put to him that he liked to be given notice as to when the job was to be performed by him so that he could plan. He said that it was not usually like that. He said that he would never know when he would be working for the defendant company but one of its employees would call and, if he was free, he would go to the job. If he was otherwise occupied, he would call the company and let its supervisor know and then the date would be changed.

37 As to the job in question, he said that “we” received notification from the defendant on the Friday and he went on the Saturday to do the job. He re-affirmed that they he had received a facsimile and attended as requested. He said he had not kept the particular facsimile.

38 In cross-examination, it was put to the plaintiff that the defendant had contacted his wife on the Monday or Tuesday of the week in question and told his wife that there was a job at the address in Cherrybrook. It was put to him that the initial contact was not made on the Friday of that week. The plaintiff disagreed.

39 It was put to the plaintiff that he did not get back to the defendant and advise it as to the day on which he was going to attend. The plaintiff responded (t.26):-

“I say to Nick that I am not busy on Saturday and I can go straightaway to Cherrybrook.”

40 In further cross-examination, however, he stated that the contact with the company may have been either with him or it may have been with his wife. It was again put to him that the information conveyed on behalf of the defendant either to him or to his wife was to the effect that the carpenters would be finished on the job on the Wednesday and he could come after that to do the job because he would then have the site himself. The plaintiff disagreed. He insisted that the supervisor of the defendant knew that he would be there on the Saturday. He rejected the suggestion that he had made up or manufactured his version.

41 In relation to the plaintiff’s actual performance of the work, he agreed that he would be required to work on the scaffolding after his hose had been pulled up from ground level from the back of his truck. He knew he would be working along the scaffolding whilst holding the nozzle of the gun close to the bricks to clean them. It was put to him that it was important for him to inspect the area of the site where he was to perform his work. He repeated that, before starting work, he saw the “plaque” which indicated that the scaffolding was safe and that “when I come … and started working there I haven’t seen the hole on the other side” (t.28).

42 In response to the suggestion that it was necessary for him to make sure there was scaffolding in place in the area in which he had to work, the plaintiff stated (t.29):-

“That is what I say before because I didn't see any hole I don't know if that piece of wood was not put properly and when I step that I fall together through that hole with that piece of wood. I can't tell you, I don't know.”

43 He repeated that he had seen the sign indicating the safety of the scaffolding. He said “I saw everything is in place what I can see and that’s it. I didn’t inspect every single piece of wood on the scaffolding” (t.29).

44 He confirmed that he started working the back corner of the house and moved progressively towards the front in accordance with a systematic method.

45 In cross-examination, the plaintiff confirmed that the scaffolding that he saw looked “okay” and that he would not know if one of the pieces was missing or “done properly or not” (t.32). He rejected the suggestion that he might have fallen off “the back of the scaffold”. It was put to him that he told the Workcover inspector:-

“I was working for some time and I simply dropped down for no reason …”

46 He disputed that account and then added, “I know that I told him that I fell through the hole”.

47 In the course of cross-examination, it was put to him that it was possible that he had fallen between the lower and the upper level of the multi-level scaffolding in the area in which he was working. The plaintiff repeated that he had fallen through the scaffolding. He rejected the suggestion put to him that he fell off the back of the scaffold (t.32).

48 Mr D O’Dowd, of counsel, who appeared on behalf of the defendant, put to the plaintiff that in the area in which he was working there were two levels of scaffolding and that he had been working on the lower level. It was put to him that he fell between the lower level and the upper level at the back of the scaffold after losing his footing (t.37). This was put to him as one alternative explanation as to how he had fallen from the scaffold to the area beneath. The plaintiff did not accept the suggested alternative explanation. Mr O’Dowd, at a later stage of the hearing having taken instructions, stated that he no longer relied upon the suggested alternative as an explanation for the accident.

49 The plaintiff was asked whether he could recall on any occasion his wife attending a work site as employer to inspect it for safety. He said he could not remember her doing so.

(2) The evidence of Mrs Sijuk

50 On the second day of the hearing, evidence was given by Mrs Sijuk. She stated that she and her husband had been separated since August 2006.

51 Mrs Sijuk stated that her business, Rosa’s Cleaning Service, worked for a number of companies including the defendant from time to time.

52 As to the system or process by which her firm was engaged, she said work arrangements were made through telephone calls with the entity requesting the service providing her with an address or a purchase order by facsimile. She stated (t.65):-

“They usually call and give address and said where we have to go or they send purchase order by fax.”

53 Mrs Sijuk said that the procedure concerning work was that normally she was given two to three days’ notice of the job. The job of brick cleaning was work to be performed when no-one else was at the site due to the fact that her husband worked using acid solution.

54 Mrs Sijuk said that the performance of brick cleaning on Saturdays was in her experience common practice. This, she said, was because Saturday was a day when no other workers were on site.

55 On Saturday 3 April 2004, she said she received a call from Mr Storrier who told her that her husband had fallen from a scaffold. When asked how it had happened, he said he did not know. He provided her with the telephone number of the neighbour who had attended her husband.

56 She then travelled to the Cherrybrook site. She said she tried to call the number that Mr Storrier had given her but it was “not in coverage” or was disconnected.

57 Upon arrival at the site, she went to the left side of the house and opened the sliding door. She then went into the house and through a window and then onto the scaffold which was on the right hand side of the house as one looks at the house from the street. She said that she checked where her husband had started and where he had been doing the brick cleaning. She could see that area clearly which she said was “around middle of house, that’s different shape of wall” (t.67). She then drew a diagram which became Exhibit F.

58 Mrs Sijuk said that she tried to call the neighbour and then later spoke to Mr Storrier and said to him, “Nick, it looks like he fall through the scaffold where is missing piece”. He responded, “Where is that?”. She replied, “That’s on corner”. He then stated, “Oh my God, I must cover that on Monday first in morning because somebody can fall.” (t.68).

59 Some time later, the neighbour arrived and asked her whether she was “Rosanna”. He said her husband was in “not too good shape at all”. She, in due course, took her husband to the medical centre. He had cuts, bruises and had been hit on or about the head. He was holding his chest and vomiting a few times. She stayed at the medical centre with him where x-rays were taken.

60 She said that arrangements were made with her cousin, Mr Ljubo Kalanj, for him to pick up her husband’s utility.

61 Subsequently, when Mr Kalanj arrived at the site, Mrs Sijuk said that she showed him where the accident happened. They walked around the scaffold and she said “he saw what I saw”. Mrs Sijuk said that she next attended the site on the following Monday to take a video. She said when she returned “… it was already covered, that hole was covered by one square plank” (t.69). Mrs Sijuk stated that the photograph in Exhibit 2 looked like the video image.

62 She said, in relation to photographs (4) and (5) in Mr Cowling’s report, that the square object shown in the photographs was not in situ when she saw it on the Saturday.

63 In cross-examination, Mrs Sijuk confirmed that she could not recall whether the call from the defendant about the job had come to her or to her husband. She said that she usually took the calls if she was “at home”. She said she did the paperwork in relation to contract work. It was put to her in cross-examination that one of the things she was required to prepare for Mr Storrier when he booked a job was a document called a Safe Work Statement. It was put to her that this was a document that she was required to send to Mr Storrier for the job at the site in question. She responded:-

““No, at that time they did not ask and I didn’t write. That was after.”

64 It was then put to her (t.73-74):-

“Q. For that particular job but for other jobs but before for other jobs they had, hadn't they?
A. No they didn't ask any work statement.

Q. In fact they sent you a form and asked you to fill it out?
A. No they didn't.

Q. I suggest you are mistaken about your answer?
A. No that was, I know when I start to do work matter statements and sub-contract statements and other bits.

Q. In any event, you were aware of the risks involved with your husband's job?
A. Yeah, I know.

Q. And you knew that involved him working on scaffolds sometimes in multi-story

houses?

A. Yes.”

65 She agreed that in the normal course of events, when Mr Storrier notified a job, that she would, at some point in time, let the company know when her husband was going to attend and do the job. Mrs Sijuk also agreed that in the normal course of events, Mr Storrier, for example, might ring her on a Monday or Tuesday and advise that the carpenters were finishing up on the Wednesday so that the site would be ready for cleaning bricks. She agreed. It was then put to her that she would say that she would arrange for her husband to attend on the Thursday. Mrs Sijuk rejected the suggestion in the question as said “No, I usually ask when” (t.75).

66 It was put to her that if Mr Storrier told her that the site was going to be clear of other people after Wednesday and that he could do it on Thursday or Friday, for example, then she would tell him which day her husband would come. She agreed to that proposition.

67 So far as the particular job on the site is concerned, it was put to her that, at no point after she was first notified of the job, did she advise Mr Storrier of the day upon which her husband would attend to do the job. She responded, “He call and he said it will be ready for Saturday” (t.75). It was put to her that she was mistaken about that. She responded, “I don't remember but I know what usually conversation for jobs was before”.

68 Mrs Sijuk said that it must have been Wednesday or Thursday that Mr Storrier initially called about the job and that it could not have been Monday or Tuesday. When asked to explain why, she said that he never called early in the week. She said that she knew how the defendant’s personnel operated and knew that there was never as much as a week’s notice, only two or three days’ notice was given (t.75-76).

69 In relation to her attendance at the site on the date of the accident, Mrs Sijuk was cross-examined about her evidence in chief on that subject and confirmed that she saw a missing piece of scaffold (t.77):-

“…I saw that on corner there, where is wall go out a little bit, it was fall down. It wasn't like all scaffold near the wall.”

70 She initially said that she saw the missing piece from the scaffold inside the house and then a little later said that she had found “one piece of one plank but I don’t know if that from, that is size similar to hole” (t.78). She said it was made of aluminium material. She did not know what the scaffold material was. It was put to her that she was mistaken about her observations in relation to the piece of material that she saw in the house. She rejected the suggestion.

71 Mrs Sijuk confirmed that she did not go on site and inspect it before her husband commenced work.

72 I carefully observed Mrs Sijuk during the course of her evidence. Whilst there may have been one or two inconsistencies in her evidence, they were not on matters central to the issues in dispute or such as to raise any serious question about her reliability. I was very impressed with Mrs Sijuk. She appeared as an honest witness who was doing her best to recount events to the best of her recollections without engaging in overstatement.

(3) The evidence of Ljubo Mir Kalanj

73 Mr Kalanj said that he was a cousin of Mrs Sijuk. He came to Australia in November 2000.

74 He recalled being contacted on the day of the accident. Mrs Sijuk came and picked him up from his home and drove him to the site at Cherrybrook. Mrs Sijuk took him around the house and showed him the scaffolding where the accident was said to have occurred. He said he went through the sliding door in the house and went through a window into the scaffolding.

75 He was asked what he saw and he replied, “It was a sort of like L-shape, L site and that corner, I saw part of scaffolding missing”.

76 He said he subsequently sat in the utility and eventually drove it to the plaintiff’s home. Mrs Sijuk then took Mr Kalanj to his home.

77 In cross-examination, he said that he could not exactly recall what time it was that he was contacted by the plaintiff’s wife. He thought it was early afternoon on the Saturday in question.

78 He was asked to describe the house. He said he recalled it was built on a slope with a different height from front to back. He could not recall exact details concerning the levels of scaffolding, although he said “It was different, some were one some were two but I can't remember exactly the details” (t.85).

79 He recalled that the house, at least, from the outside was almost finished and that the washing, as he called it, of the walls was one of the last jobs to be done.

80 When asked to describe the missing piece of scaffolding he referred to the area of the corner and said that it was “like a square” (t.85-86). He said that he did not see what was described as the “missing piece” anywhere and he said that he did not talk about that with Mrs Sijuk. He said there were lots of things on the internal floor of the house. He said he did not have a look to see if he could find the missing piece.

81 He said that he recalled that he was “… sort of puzzled by why this piece is missing there” (t.86).

82 As with Mrs Sijuk, Mr Kalanj impressed as a straight-forward witness who gave his evidence without any embellishment. I have no hesitation in accepting his evidence completely.

(4) The evidence of Mr Cowling

83 Mr Hugh C Cowling, civil and construction engineer, wrote a report which, inter alia, dealt with his opinion in relation to the causes of the plaintiff’s accident. The report was dated 10 April 2008 and it became Exhibit G in the proceedings.

84 Mr Cowling met with the plaintiff and stated his assumptions in his report (paragraph 5). The report contained a photograph of the area in which the plaintiff was working, being a photograph taken from a video made by Mrs Sijuk on 6 April 2004.

85 Mr Cowling noted that the scaffolding in the relevant area comprised two different level decks. The lower (inner) level was a two plank wide deck and the higher level was a three plank wide deck.

86 He stated in his oral evidence that, in his opinion, the scaffolding should have been inspected every day and before work commenced. He also agreed in cross-examination that the plaintiff should himself have inspected the scaffold on which he was to work. He, however, also said it was “beneficial” that the plaintiff saw the certification as to safety of the scaffold “… because that is the first thing that anybody is supposed to look at before they got onto the scaffold”.

The defendant’s evidentiary case

(1) The evidence of Mr Edwin Thompson

87 In April 2004, Mr Thompson was a neighbour who lived adjacent to the construction site. He is a marine engineer by occupation.

88 On Saturday 3 April 2004, he was at home and he noted that the plaintiff was at work in the next door property which is adjacent to his back fence. He heard a water blaster start up and, when he looked over, he saw the plaintiff working on the bricks. He said he could see a plume of water down the side of the house. His view was partly obscured by the 1.8 metre fence between the two properties.

89 He said that approximately 15 minutes later, he walked past and saw the water blaster sticking up in the air with water coming out. He looked over the fence and saw a man sitting on bricks underneath the scaffolding. He went over and helped him. He asked the plaintiff if he wanted an ambulance called and he replied in the negative. He said the plaintiff was a bit hazy. He asked him what happened and the plaintiff replied, “I just can’t remember. I can’t remember. I have been doing this since 1967”.

90 The position in which Mr Thompson found the plaintiff “underneath the scaffold” is, of course, consistent with the plaintiff’s account of having fallen through the scaffold and ending up beneath it.

91 Mr Thompson said he turned the water blaster off and packed the plaintiff’s gear away. The plaintiff reminded him that there were two drums of acid up on the scaffolding. Accordingly, he went and got them. He then took down the plaintiff’s ladder and put it in the utility. He said that the hose used by the plaintiff was located at the back of the indentation or protrusion in the side brick wall.

92 Mr Thompson said that in the course of collecting the gear, he looked where he was walking and it seemed “pretty safe”. He was asked if he made any observations about anything missing from the scaffolding. He said there was nothing missing that he could see. He said the scaffolding was fairly steady.

93 At the medical centre, Mr Thompson said he tried to call the plaintiff’s wife on a number of occasions but her number would not come up. In due course, the plaintiff’s wife rang him.

94 At some later point, Mr Thompson spoke to the plaintiff’s supervisor, whose name he could not recall, about the utility and the gear inside it. He said he gave the keys of the utility to the plaintiff’s wife when she arrived.

95 In cross-examination, Mr Thompson drew a diagram (Exhibit K) in which he marked the position where he found the plaintiff with the letter “P” and the position of the acid tanks with the letter “A”.

96 Mr Thompson said that the platform, as he recalled it, only had one level. He could not recall seeing a higher or lower level. In the area where the plaintiff had his accident there were two levels as discussed earlier. Mr Thompson’s recollection was clearly deficient in that respect.

97 It was put to Mr Thompson that, when he was looking at the scaffolding, he was not carrying out an inspection of it. He replied, “I was making sure I didn’t fall off it so I was looking where I was going” (t.133). He then added:-

“Actually, it is a habit when you walk on scaffolding. You always look because I have fallen off scaffolding at the shipyard into their net.”

98 He said that there was no fault in the scaffolding evident to him that could have caused the injury to the plaintiff. However, he made it clear that he had not made a point of carrying out an inspection on the scaffold. When it was put to him that he did not, in fact, inspect the scaffolding, he replied, “No, I just made sure where I was going was safe” (t.133).

(2) The evidence of Nicholas Storrier

99 Mr Storrier is a builder and, at the time of giving evidence, he held a franchise with the defendant. In April 2004, he was supervising for Craftsman Homes. He said that involved running the building sites, organising trades etc. He said the houses built were custom built homes.

100 Mr Storrier said that he came to know the plaintiff through having employed Rosa’s Cleaning Services to do what he described as “the internal cleans of houses and she informed me that her husband was a brick cleaner” (t.135).

101 In late March, early April 2004, he was supervising the site. In that capacity, he arranged various trades to carry out work on site.

102 As at the end of March 2004, the brickwork was up and had been completed, facia guttering was on and carpenters were doing the eave soffits.

103 He stated that the scaffolding had been erected by a contractor known as Uniroof. He said it was used by the bricklayers some time prior to the date of the accident.

104 It was clear from his evidence that Mr Storrier had no record or a precise recollection as to the day upon which he contacted Rosa’s Cleaning Services. He said that, as he recalled it, he made contact on either the Monday or Tuesday in the week leading up to the accident.

105 Mr Storrier said that he spoke to Mrs Sijuk by phone about doing the job at the site. He was asked as to what he said to her when he called. He replied:-

“I told her that the carpenters had been at Kentia Parade doing the eaves and they were finishing on the Wednesday and that the brick cleaner was right to go from the Thursday onwards

…

Q. During the conversation was a specific date advised to you by Rosa as to when Mr Sijuk would attend to do the cleaning?

A. No.”

106 Prior to the plaintiff commencing work on site, in chief, Mr Storrier was asked as to what he required to take place (t.137-138):-

“Q. Prior to Mr Sijuk commencing onsite, what did you require to take place?
A. Them to ring me and tell me what day they were going there.

Q. Why was that?
A. So I could meet them onsite.

Q. What would you do when you meet them onsite?
A. Inspect the site and make sure everything was right for Michael [the plaintiff] to go on to.

Q. That involved the scaffolding?

A. Yes.”

107 Mr Storrier did not, in terms, tell Mrs Sijuk or otherwise state that he required her to call him back and specify the date upon which her husband would do the cleaning work. Although he was asked, as indicated in the passage set out in the last paragraph (“… what did you require to take place?”), he did not say that he had at any point communicated or conveyed to her that that was a requirement before the plaintiff commenced work.

108 When asked how he could remember having contacted Mrs Sijuk on the Monday or Tuesday of that week, he said he could not identify any particular basis for his recollection. He said he was relying “to the best of my recollection” and that he usually attempted to give contractors a week’s notice (t.145). He agreed, however, that, if he had on his occasion rung on the Monday or Tuesday indicating that the job would be ready for him to start on the Thursday, then that was less than a week’s notice.

109 He said that no appointment was made when he rang about the job. When asked whether he sent a facsimile, he said he did not know. He stated that the company would send a purchase order.

110 When it was put to Mr Storrier that it was, in fact, the Wednesday or the Thursday that he rang Rosa’s Cleaning Services, he replied “I don’t know” and a little later “It could have been” (t.146).

111 In evidence, he stated that he had inspected the scaffolding on the Wednesday, the day on which the carpenters had finished up. He said planks of the scaffolding were in tact (t.146).

112 When he was asked whether it was a close inspection, he replied, “Yes, well, I walked around the scaffolding, so, yes it was” (t.147). It was put to Mr Storrier that he had been interviewed by a Workcover inspector some months after the accident but that he did not tell him anything about having carried out an inspection of the scaffolding on the Wednesday. Mr Storrier could not recall whether he was asked a question about that matter. It was also put to him that he had spoken to a Mr Mark Novotny from Phoenix Global on 24 August 2006 on which occasion he discussed the matter including the scaffolding, but that he did not refer to having inspected the scaffolding himself (t.148):-

“You mention nothing to Mr Novotny about going up on the scaffold yourself and inspecting it for safety, did you?

A. No.”

113 He repeated that the Workcover inspector had also not asked him whether he had inspected the site.

114 When it was put to Mr Storrier that it was “accepted practice” for brick cleaning work to take place on Saturdays, he stated “different brick cleaners work on the weekends”. He agreed that the reason for that was that the brick cleaning could be done, using the acid solution, when no other person was on site and who might otherwise be affected (t.150).

115 In relation to Saturday work, it was put (t.151):-

“Q. And when that happened

the brick cleaners were there on the Saturday, arriving at the site by himself and working by himself without your presence, isn't that the case?

A. Yes.”

116 He agreed that a couple of months after the Workcover investigation, a memorandum was sent around to all sub-contractors stating that no work was to be carried out on Saturdays, Sundays and public holidays. It appears that that memorandum was sent in January 2005.

117 Finally, it was put to Mr Storrier:-

“Q. You didn't work Saturdays?

A. No.”

118 On the date of the accident, he said he was driving to a destination in the country. It appears that he was near Goulburn when he received the call about the accident.

119 In the course of his evidence, Mr Storrier said that the defendant’s “contractors” had produced “the work method statement to the office” (t.139). His evidence was to the effect that Mrs Sijuk had not provided such a statement before commencing work on the site. No other evidence was adduced to prove a system for the provision of statements was in place at the time Rosa’s Cleaning Services was contracted for the job in question. Apart from Mr Storrier’s own evidence on the matter, the defendant did not produce any documentary or other material which established the date or the approximate time at which any procedure involving work method statements was introduced. The evidence was that Rosa’s Cleaning Services had contracted on a significant number of occasions to do work for the defendant. Apart from Mr Storrier’s evidence, no evidence was adduced by or on behalf of the defendant to establish that work method statements had been required at any time before 3 April 2004.

120 I am not satisfied that, as at 3 April 2004, the defendant had, in fact, implemented a procedure of receiving such statements. Mrs Sijuk, with whom I was impressed as a witness, strongly denied any such practice at that time. I have no hesitation in accepting her evidence on the matter. Mr Storrier, on the other hand, was not able to identify any basis for his evidence on the matter.

121 On the date of the accident, Mr Storrier received a call from the neighbour (Mr Thompson) saying that the plaintiff had fallen off the scaffold. He immediately contacted Mrs Sijuk, he, as earlier noted, being in the country. He said he told her that her husband had had an accident at the job site. She said that she would go there straight away.

122 Mr Storrier next attended the site on the Monday morning. He said he arrived at 7.30 am and no-one else had arrived on site before him, so far as he could determine.

123 After he climbed the scaffold and whilst inspecting it, he saw what he described as, an internal piece 600 mm by 600 mm which had been taken out and sitting on the lower level of the scaffold. He said that he had not observed it when he had been there on the previous Wednesday, at which time he said it was “in place” (t.141).

124 He explained the nature of the structure or formation of the scaffolding used on site. In the area in question, a piece of scaffolding was jammed in place by a wedge by means of tapping the wedge with a hammer. He said that beneath the panel was a support mechanism, that is, a strut coming down as depicted in Exhibit L, a diagram that he drew during the course of his evidence. He said that if the wedge was missing, the piece of scaffolding would still be supported because it had a pin that goes into a triangular piece at the top. Accordingly, the piece would not drop. But if the wedge was not jammed in, then the piece of scaffold could be loose but it would still not be able to fall out. By that he said he meant that there would be some movement in the scaffold if it was stood on in those circumstances.

125 The evidence of Mr Storrier in chief and in cross-examination establishes that when he inspected the scaffolding on the Monday immediately after the accident, he observed two matters:-

(1) Firstly, he said that, in relation to the scaffolding in the area used by the plaintiff, a particular piece of scaffolding was out of place. In evidence in chief he said in this respect “There was (an) internal piece 600 by 600 which has [sic] been taken out and sitting on the lower level of scaffold” (t.140). In cross-examination, he confirmed that the “missing piece” was on the lower scaffold next to where it should have been located.

“I put it back in on the Monday morning when I got back on the site”

126 It was put to Mr Storrier in cross-examination that Mrs Sijuk, when she rang him on the Saturday, told him that there was a missing piece of scaffolding (t.143):-

“Q. I suggest this to you, that she rang you and told you that she had visited the site and that there was a missing piece in the scaffolding?
A. Okay.

Q. You have no memory of that?

A. She possibly did. Yes. Okay.”

127 Mr Storrier was shown photographs in the report of Mr Cowling dated 10 April 2008 (Exhibit G). The photographs depicted a 600 mm by 600 mm panel of decking which was said to have been missing at the time of the fall. In cross-examination, Mr Storrier confirmed that the object depicted in the photographs was the piece he had referred to during the course of his evidence as the “missing piece”.

128 Mr Storrier said that, as at the date of the accident, the house had reached “lock-up” stage. He agreed that anyone could have entered the premises at that time.

(3) The evidence of Messrs Henderson and Reid

129 The carpentry work on the site was performed by a company, R A & G A Henderson Builders. On the site in question, they employed Julian Henderson, carpenter, and Brett Reid also a carpenter, both of whom were called to give evidence.

130 Mr Henderson stated that, by reference to an invoice book entry, his last day at work on the site was 31 March 2004. He was involved in putting up the framework for the house and, at a later point in time, work associated with the eaves. It was in relation to the latter work that he was working on site in March 2004. He said that before starting work, the practice was normally to get all the tools out and he would generally walk around the job to make sure all the scaffolding was complete and that the job was ready to perform. He said that on the site in question the scaffold was against the brick wall of the building.

131 He said in the morning of 31 March 2004, Mr Storrier was on site in the morning at some stage.

132 On completion of the work, Mr Henderson said the practice was that they would walk around and make sure that the work was finished, to check if any tools or waste had been left lying on the scaffolding. He said that he did not recall seeing any scaffolding missing. He was asked (t.155):-

“Q. If you had come across a piece of scaffold that was not in place, what would you do about it?

A. Every now and again you come across where a plank has been pulled out of a scaffold for some reason. If - we just put it back because we have to stand on it basically, but if it is something more than one plank or two planks, we ring - or I ring Nick and he gets the scaffold company out to fix anything.”

133 He said that that was not something that had happened on the job in question to his knowledge.

134 In cross-examination, it was put to him that, when he had been asked whether he had seen any missing piece in the scaffolding, he was not specifically looking and he agreed. It was also put (t.156):-

“Q. You said every now and then a plank of scaffolding could be pulled up and you put it back, for what sort of reason would that happen?

A. Only if someone else has removed it because a reason like - usually the scaffold is just set up for your work only. So there is no real reason but every now and again on your job you come across that one or two planks are pulled out by someone on the job who never put them back.”

135 Mr Reid gave similar evidence to Mr Henderson as to the practice when starting and before leaving the site and he was asked whether he saw any missing pieces of scaffold on the platform where he had to work. He said, “No, not that I remember, no” (t.158). He said that, if he came across a piece of scaffolding that was missing, he would “probably put something there to work off or ring up Nick to get it fixed”. He did not recall having to do that on this job.

Analysis

(1) The arrangements for brick cleaning at Kentia Parade

136 The evidence as to the day in the week commencing 29 March 2004 on which Mr Storrier rang Rosa’s Cleaning Services is imprecise. Mr Storrier had no record of the contact being made and his evidence, based solely on his recollection, was by no means clear or certain. There is also conflict between his evidence and that of Mrs Sijuk as to whether Saturday (3 April 2004) was mentioned in the relevant phone call as the date upon which the plaintiff was to perform the work. Again, there are no records as to that matter.

137 The evidence establishes that the defendant had engaged Rosa’s Cleaning Services on a number of occasions before April 2004. It is clear that the usual practice adopted by the defendant for engaging the plaintiff and his wife’s business was quite informal without much in the way of record keeping. The arrangement involved a phone call and the issue of a purchase order. The brick cleaning was to be done on a day when no-one else was required to work on site because of the need to use acid solution for the purpose of cleaning the brickwork.

138 It is unclear whether Mr Storrier spoke to Mr or Mrs Sijuk in relation to the site job. It is likely that it was Ms Sijuk. She normally took calls and made arrangements. On Mr Storrier’s evidence, it would have been quite acceptable to him for the plaintiff to have done the work on the Thursday, Friday or Saturday of the week in question. Mrs Sijuk said that it was common practice for such work to be done on Saturdays. It is reasonable, in those circumstances, to infer that both Mrs Sijuk and Mr Storrier would have considered the Saturday as, at least, equally a likely day for the plaintiff’s attendance at the site as the Thursday or Friday. As Saturday was the day brick cleaning was often done, if anything, Saturday 3 April presented as the likely day on which the plaintiff would attend the site.

139 Mrs Sijuk said that the defendant sent a facsimile after the phone call from Mr Storrier. That, on the evidence was very likely a purchase order for the job. It was thrown away. It is reasonable to infer that the defendant kept a copy of it. However, no copy was tendered in evidence by the defendant and no evidence was called to establish whether or not the copy has since been lost, destroyed or mislaid.

140 Mr Storrier’s evidence was to the effect that, in his phone call, the site was available from the Wednesday. He did not specify any particular day on which he required the work to be done. Further, he did not say in evidence that he told Mr Sijuk to notify him in advance as to the day on which her business would do the work. There was evidence to the effect that, before the job in question, the defendant had, on other occasions, expressly specified or required Rosa’s Cleaning Services to advise it in advance of the day when work would be performed. There was, however, no documentary or other evidence that established that any such requirement, if there had been one, had been communicated to Rosa’s Cleaning Services before the firm was engaged for the job in question. Mr Storrier’s evidence was simply that he said to Mr Sijuk that the carpenters were finishing on the Wednesday and that “the brick cleaning was right to go from the Thursday onwards”.

141 Mr Storrier’s recollection of any practice as to a requirement to notify in advance was, as earlier stated, imprecise and was unsupported by other evidence. It was contrary to Mrs Sijuk’s evidence. I accept her evidence that:-

(1) The usual practice was that she would receive two to three days’ notice from the defendant for a brick cleaning job. This was contrary to Mr Storrier’s evidence that he usually tried to give one week’s notice.

(2) The plaintiff had previously done work for the defendant on Saturdays. Mr Storrier agreed that Saturdays were days upon which brick cleaning work was carried out.

(3) There was no requirement in place as at the time of the job in question for safe work statements to be supplied by her to the defendant. There was no credible evidence to the contrary.

142 Whilst it was common practice for brick cleaning to be carried out on Saturdays, Mr Storrier’s evidence was he himself did not work on Saturdays. He said that it was generally his role to inspect scaffolding before a particular contractor started a job. On Saturday 3 April 2004, as he was travelling to the country, even if Mr Storrier knew in advance that the cleaning work was to be done on the Saturday, he would not, on his evidence, have been in attendance on that day to have inspected before the plaintiff commenced work. There was no evidence of any one else having responsibility for doing so in his absence.

143 Finally, when Mr Storrier spoke to Mrs Sijuk on the phone after the accident, there was no suggestion in the evidence that he expressed any surprise to her that the plaintiff had been cleaning the brick work at the site (even though, in evidence, said he had not expected the plaintiff to have been there). The fact that he did not express any surprise is, at least, consistent with Mrs Sijuk’s evidence and his own, that it was common for brick cleaning to be Saturday work.

144 Mr Storrier said that he last inspected the site on the Wednesday during the morning. The carpenters finished the job on the afternoon of that day. However, the fact that he failed to tell the Workcover Authority or Mr Novotny that he had inspected the scaffolding on the Wednesday suggests that his evidence in 2010 that he did inspect the scaffolding that day suggests that his evidence is a reconstruction of events. I do not, by this, mean that Mr Storrier was giving deliberately untrue evidence. I consider that his evidence that he inspected the scaffolding that day, which is not corroborated as a fact by the evidence of the carpenters, to be unreliable.

(2) The cause of the accident

145 After setting up for work on the scaffold, the plaintiff commenced to carry out cleaning duties over a period of about half an hour moving progressively along as he did so. The effect of his evidence was that he did not notice or detect any defect in the scaffold, including, in particular, on the first level from which he worked. In particular, he said he did not notice any gap or hole in the scaffold in the relevant area. He said that he simply fell three and a half to four metres.

146 In analysing the evidence to determine the cause of the accident, I note:-

• It is clear that the plaintiff, by some means, fell from the scaffold whilst working on it and he came to rest directly underneath the scaffold.

• There is no apparent explanation for the fall other than that the structural integrity of the scaffold was in some way impaired.

• On the Monday morning, Mr Storrier found a piece of scaffold 600 mm by 600 mm out of place. That is consistent with the evidence of Mrs Sijuk and Mr Kalanj who said that they noticed a hole or gap in the scaffold in the area in which the plaintiff had evidently been working.

(3) Findings on liability in negligence

147 The evidence of Mrs Sijuk, Mr Kalang and Mr Storrier establishes on the probabilities that between Wednesday afternoon and Saturday morning, a person or persons unknown moved a piece of scaffolding measuring 600 mm by 600 mm from its position thereby leaving a gap or hole in the lower level of the scaffolding. The plaintiff’s accident occurred after he had performed work for about 30 minutes when he fell through a gap/hole in the scaffold. At that time, it is likely that his vision would have been impaired by an accumulation of material on his work goggles. It is unclear as to whether the gap or hole was clearly visible before the plaintiff’s fall.

148 I accept that before climbing onto the scaffold the plaintiff saw, as he said, a notice or a certificate to the effect that the scaffolding had been passed or certified as safe and that that gave him a level of comfort as to its safety.

149 There is no evidence that the plaintiff carried out a detailed inspection of the scaffold before starting work. On the evidence, it is clear that Mrs Sijuk, as her husband’s employer, did not inspect the site before her husband went there and that she, at all times, left it to him to assess work sites given that he had, and she did not have, the requisite skill and experience necessary for the performance of brick cleaning work and for assessing safety on work sites and in the doing of the work.

150 On the finding which I make, namely, that the fall was occasioned by a missing piece of scaffolding, the liability issues at common law in the present proceedings are to be considered in terms of the following:-

(1) The primary liability of the defendant in negligence as the principal of the project and occupier of the site.

(2) The liability of Mrs Sijuk as employer of the plaintiff.

(3) The issue of contributory negligence of the plaintiff.

151 The defendant, as the on-site builder and organiser of sub-contractors, had the principal responsibility to take reasonable care to make the site safe for the performance of work by such sub-contractors including Rosa’s Cleaning Services and the plaintiff.

152 The duty of care in that respect extended to the provision of safe means of access for sub-contractors, including the scaffolding on site.

153 The defendant’s duty of care extended to those who might reasonably be expected to perform work on Saturdays.

154 The site was not secured or fenced off so as to prevent third parties or strangers from entering the construction site. Whether a person who had lawfully been on site or some other person who entered the site removed or dislodged the 600 mm by 600 mm piece of scaffolding is unknown. That piece was probably removed at some point in time between the Wednesday preceding the accident and the time of the plaintiff’s accident. There is no suggestion that the plaintiff removed it.

155 I accept the plaintiff’s evidence that he saw the certificate indicating that the scaffolding had been passed as safe to use.

156 The evidence does not indicate that the defendant took steps after the last day of work by the carpenters until the day of the accident to ensure that the scaffolding was or remained in a condition in which no pieces of scaffolding had been removed.

157 The arrangements made by the defendant with Mrs Sijuk for the plaintiff to attend the site were informal and imprecise. Those arrangements left open the prospect that the plaintiff would perform the work on the Saturday when Mr Storrier would not be available to inspect the scaffolding on the Saturday before he started his work as Mr Storrier was travelling to the country that day. On the evidence, there was no one else other than Mr Storrier who was assigned the tasks of liaising with Mr Sijuk and inspecting the site on behalf of the defendant.

158 Accordingly, the factual matters included, firstly, the absence of any clear arrangement for the performance of work including the failure by the defendant to co-ordinate the plaintiff’s work for a particular day, secondly, a failure to carry out an inspection of the site and, thirdly, the existence of a gap or hole in the scaffold.

159 The evidence, in my opinion, clearly establishes a breach by the defendant of its duty of care to provide a safe place of work and a safe means of access to the work to be performed by the plaintiff. That breach of duty was causative of the plaintiff’s accident.

Contributory negligence

160 As McColl JA (with whom Mason P and Beazley JA agreed) observed in Pollard v Baulderstone Hornibrook Engineering Pty Limited [2008] NSWCA 99 at [13], at common law a plaintiff is guilty of contributory negligence when he or she exposes him or herself to a risk of injury which might reasonably have been foreseen and avoided and suffers an injury within the class of risk to which he or she was exposed: Joslyn v Berryman [2003] HCA 34; (2003) 214 CLR 552 at [16] per McHugh J.

161 The issue of primary negligence is governed by s.5R of the Civil Liability Act which provides:-

“(1) The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributory negligent in failing to take precautions against the risk of that harm.

(2) For that purpose:-

(a) the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and

(b) the matter is to be determined on the basis of what that person knew or ought to have known at the time.”

162 In Pollard (supra), McColl JA observed at [14] that the words “reasonable person in the position of that person” in s.5R are equivalent to the words “a reasonable person in the plaintiff’s position”: Waverley Council v Ferreira [2005] NSWCA 418; (2005) Aust Torts Reports 81-818 at [87]. McColl JA also referred to dicta concerning s.5R, namely, “the expectation that, in general, people will take as much care for themselves as they expect other to take for them”: Consolidated Broken Hill Limited v Edwards [2005] NSWCA 380 at [70].

163 In Pollard (supra), the appellant in that case was not the respondent’s employee and that, McColl JA noted, different considerations arise in the case of contributory negligence on the part of such persons, citing Thompson v Woolworths (Queensland) Pty Limited [2005] HCA 19; (2005) 221 CLR 234 at [40]. In an employment situation, the Court is required to take into account, in determining whether a plaintiff has been guilty of contributory negligence, the fact that the employer had failed to use reasonable care to provide a safe system of work which exposed the plaintiff to unnecessary risks.

164 McColl JA in Pollard (supra) also observed that the circumstances which attract particular consideration when a person is injured in an employment situation may also be relevant, however, when the question of contributory negligence arises in a non-employment context. What is reasonable care, her Honour observed, depends on the circumstances of the case. Contributory negligence focussed on the conduct of the plaintiff tested against that of a reasonable person in the plaintiff’s position. The duty owed by the defendant is one of the factors that must be weighed in determining whether the plaintiff so conducted him or herself as to fail to take reasonable care for his or her safety.

165 By reason of the matters to which I have earlier referred there, there was no breach of duty in the plaintiff attending the site on the day of the accident. He was, by what was said by Mr Storrier to Mrs Sijuk, told that the site was clear for him to work after the Wednesday and he attended, as was customary, to perform the work on the following Saturday. It was within contemplation that the work on the site would be performed in accordance with the practice established relating to such work.

166 In the present case, the issue of contributory negligence is confined to the narrow issue as to whether or not, before the plaintiff started work, he ought to have carried out an inspection of the scaffolding or seen the gap/hole as he progressed with his work.

167 The plaintiff entered the site in circumstances in which he considered the scaffolding provided a safe means of access to the brickwork to be cleaned. His belief in that respect was based partly upon the fact of the certification that the scaffolding was “safe”.

168 The plaintiff, to an extent, was also entitled to act upon the basis that the defendant had fulfilled its responsibility for safety on the site and, in particular, had provided safe scaffolding for the work of sub-contractors and workers as himself.

169 The fact that the plaintiff did not see a hole or gap in the scaffold whilst performing work was probably partly due to the fact that, on the evidence, his vision would have been impaired by the build-up of the residue of material on his goggles resulting from the brick cleaning.

170 In the whole of the circumstances, any failure by the plaintiff to take care for his own safety would, in my opinion, be confined to not checking to see if the scaffolding provided by the defendant appeared to be safe as it ought to have been before starting work. As indicated above, there is a basis as to why he could reasonably have expected that the scaffolding was in a “safe” condition as certified. His obligation was not to carry out a detailed inspection as would a ticketed scaffolder. A limited examination by looking generally at it would be sufficient before proceeding. To the extent that he did not do so there is evidence of a failure to take care to that limited extent. In all the circumstances, I consider that the plaintiff’s contributory negligence should be assessed at the lower end of the scale, namely, at 15%.

The notional liability of Rosa’s Cleaning Services

171 By reason of the provisions of s.151Z of the Workers Compensation Act, and the defence pleaded on the basis of that provision, it is necessary to assess whether the plaintiff’s employer (his wife) can be said to have breached her duty of care and, if so, in what proportion, having regard to the negligence finding made against the defendant.

172 Apportionment between defendants is a discretionary determination about which reasonable minds may differ: Eastside Scaffolding v Kazic [2008] NSWCA 146. In the present case, of course, there is only one defendant and it has been necessary to assess the notional liability of the employer for the purposes of making the adjustment required by s.151Z.

173 In Eastside (supra), the plaintiff was struck on the head by a piece of scaffolding on a construction site. He brought proceedings against his employer, the head contractor, a sub-contractor who supplied the scaffolding and Eastside who contracted to provide labour to Waco Kwikform for the erection and dismantling of the scaffolding. The trial judge found that Eastside was liable because the system it employed for moving the scaffolding was unsafe. The proportions of liability were Eastside 75%, Kwikform 15% and 5% to each of Capital Construction (the plaintiff’s employer) and John Holland.

174 On appeal, the Court of Appeal (Hodgson, Tobias and McColl JJA) refused to intervene on the question of apportionment.

175 In Pollard (supra) (Mason P, Beazley and McColl JJA), the plaintiff (the appellant) was a truck driver who provided services to Pioneer Construction Materials Pty Limited by his employer, Dependable Personnel Pty Limited, a body hire company. He was injured when he slipped and fell in a wash bay whilst cleaning the tyres of his truck.

176 The trial judge had determined that the deduction in that case in terms of s.151Z(2)(c) of the Workers Compensation Act was 20% of account of Dependable’s notional liability. McColl JA considered the employer’s non-delegable duty of care in the context of the circumstances of that case and the principles to be applied at [33] to [38].

177 McColl JA also reviewed relevant cases, including in particular, those involving labour hire arrangements and the results in those cases in terms of the responsibility attributed to the employer. They included Maricic v Dalma Formwork (Australia) Pty Limited [2006] NSWCA 174 and TNT Australia Pty Limited v Christie [2003] NSWCA 47; (2003) 65 NSWLR 1. McColl JA concluded that the primary judge had not erred in attributing 20% responsibility to Dependable, having regard to the particular circumstances of that case, observing “there is not a standard tariff in such cases” (at [62]).

178 In making the assessment of the relevant responsibilities of the defendant and Mrs Sijuk, as employer, it is necessary to bring to account a number of factors. The first is that the defendant was the entity with control over and responsibility for managing the on site construction including, in particular, the scaffolding for the use of sub-contractor’s employees. As such, its responsibility was to ensure that the site and means of access for the performance of work was reasonably safe. The minimum required in this respect of the defendant was to ensure that there was a proper inspection undertaken before a new contractor was invited on site to perform work.

179 The defendant, in addition, had the responsibility for properly co-ordinating contractors. This responsibility would involve proper arrangements being made at the outset and before a contractor entered on site. It was, in this respect, the defendant’s responsibility to confirm the likely sequence of events leading to the actual commencement of work by a contractor on site. This was essential if a reasonable inspection of the site was to be programmed before the plaintiff entered the site thereby identifying any defects or risks before the contractor (or its employee) commenced work.

180 The factual matters subjacent to the defendant’s responsibilities and its primary liability are also to be borne in mind when considering the adjustment required to be made by s.151Z.

“The calculations s.151Z(2)(c) requires the Court to undertake were explained in Forstaff Blacktown Pty Limited v Brimac Pty Limited; Brimac Pty Ltd v Johnston [2005] NSWCA 423; (2005) 4 DDCR 179 (at [74]) as follows (including the names of the first respondent, BHE, and Dependable to make the exercise clear):

(a) Section 151Z(2)(c) provides for a reduction in the damages the plaintiff worker may recover from a tortfeasor (the non-employer) [BHE] other than the employer tortfeasor [Dependable] in the proceedings which the plaintiff worker has taken for damages against the non-employer [BHE]: Grljak no 1 (at 88); Clout (at [29]); the worker’s entitlement to recover from the employer tortfeasor [Dependable] either directly or indirectly is to be no greater than if the worker had sued the employer tortfeasor [Dependable] alone, but the net burden on the non-employer [BHE] is not to be increased; Grljak no 2 (BC9601317 at 7); Clout (at [29], [38]);

(b) The figure used in s151Z(2)(c) is calculated by the Court:

(i) deciding the amount of the contribution the non-employer [BHE] would (but for Pt 5) be entitled to recover from the employer tortfeasor [Dependable] as a co-tortfeasor or otherwise at common law;

(ii) deciding what is ‘the amount of the contribution recoverable’ within s.151Z(2)(c) and s. 151Z(2)(d); and

(iii) deducting the second figure from the first, the product being the amount by which the plaintiff worker’s common law damages from the non-employer [BHE] are to be reduced: Grljak No 1 (at 88 – 89) Clout (at [29] – [31]);

(c) Where step (b)(ii) leads to the conclusion that the employer tortfeasor [Dependable] would have been liable to pay no damages if the plaintiff worker’s damages were calculated under Pt 5, Div 3, the whole of the figure derived after step (i) is deducted from the plaintiff worker’s damages: Grljak no 1 (at 89); Grljak no 2 (BC9601317 at 7) Clout (at [34]);”

181 In these proceedings, the plaintiff was the only employee of Rosa’s Cleaning Services and, in that firm, he was the only person with specialist knowledge and experience in the occupation or trade of brick cleaning. Before Rosa’s Cleaning Services was established, he had operated in his own name in that field (before 2003/2004) and, for whatever reason, he and his wife decided to restructure the earlier method of contracting for such work by interposing a business entity of which Mrs Sijuk was the sole proprietor.

182 Mrs Sijuk, the plaintiff and the defendant had developed an arrangement whereby Rosa’s Cleaning Services (Mrs Sijuk) provided the plaintiff to do brick cleaning work for the defendant. That was, as earlier stated, a very informal arrangement. There is no doubt that Mr Storrier understood that he was dealing with a husband and wife team and that, whilst Mrs Sijuk was engaged as a sub-contractor, it was her husband and not her that had on-site brick cleaning experience.

183 In those circumstances, the defendant (In particular, through Mr Storrier) may be taken as knowing that Rosa’s Cleaning Services was an unsophisticated entity (consisting of Mrs Sijuk) and that the plaintiff’s safety onsite would be its responsibility and, insofar as he was responsible for taking reasonable care for his own safety, the plaintiff’s responsibility to exercise reasonable care for his own safety.

184 The arrangement between the defendant and Mrs Sijuk did not, as I have earlier found, involve any request or requirement by the defendant for Mrs Sijuk to submit a statement as to safe work practices before work commenced. On the evidence, any such practice was adopted after, and not before, the plaintiff’s accident.

185 Accordingly, the material circumstances included the fact that the defendant knew it was dealing with an unsophisticated sub-contractor (the wife of the plaintiff), that she did not exhibit or profess to have any particular knowledge of on-site work or safety procedures, that there had not been any inspection of the scaffolding by the plaintiff’s wife and that the defendant assumed responsibility for on-site safety.

186 As the principal (or builder), the defendant had the responsibility for co-ordinating site safety between contractors. There is no evidence of any acts of co-ordination before the accident by or between the defendant and sub-contractors (including Mrs Sijuk) on matters of site safety or work practices.

187 The arrangement between the defendant and Rosa’s Cleaning Services in terms of both the initial contracting stage and the implantation stage was a very loose and unstructured one.

188 The notional liability of Mrs Sijuk, as “employer” of the plaintiff, is to be evaluated in the context of the circumstances of the case. On that basis, I do not consider that Mrs Sijuk’s alleged failure with respect to her duty of care can be said to have had a causal consequence to any marked degree. Her liability, in my assessment, is to be assessed as at the low end of potential liability which I assess to be 10%.

Statutory Counts

189 The issue of breach of statutory duty arises under paragraphs [11] and [12] of the Second Amended Statement of Claim. The plaintiff therein pleads Regulations 34, 35, 36 and 39 of the Occupational Health and Safety Regulation 2001. These respectively deal with:-

(1) Alleged failure to identify hazards arising from the physical working environment of the plaintiff.

(2) Failure to assess the risk of injury.

(3) Failure to eliminate or control the risk of injury.

190 In additional, reliance was placed upon s.8(2), being an alleged failure to ensure that the plaintiff was not exposed to risks to his safety arising from the defendant’s undertaking.

191 Finally, reliance was placed upon s.10, being failure to ensure the premises were safe.

192 The question as to whether a statutory private right of action arises in respect of similar provisions was considered in Wynn Tresidder Management v Barkho [2009] NSWCA 149.

193 In that case, McColl JA considered the question in light of the well-known decision in O’Connor v S P Bray Limited (1937) 56 CLR 464.

194 The facts in Wynn Tresidder (supra) were very different from the present case in which the plaintiff was injured when she slipped on a ramp which provided access to and from a car park in a shopping centre.

195 McColl JA stated at [91] that it was, prima facie, improbable that legislation whose objective is to secure the health, safety and welfare of persons at work would extend to provide a private cause of action to members of the public. The plaintiff, in that case, sued as a member of the public, the occupier of the shopping centre.

196 Her Honour also observed at [94] that, so far as the Regulation there in question was concerned, the legislature had left open the question whether a breach of any duty it imposes was actionable: s.32(2), s.39A.

197 McColl JA raised the further question at [98] as to whether there was any contrariety between the provisions of the Civil Liability Act and the Act and Regulation relied upon the plaintiff in that case. That issue was not the subject of any detailed submissions in the course of the present case as indeed was the position in Wynn Tresidder (supra).

198 Section 4(1) of the Regulation provides that it applies to all places of work except as otherwise provided. The Act is expressed to be “an Act to secure the health, safety and welfare of persons at work …”. Its objects are set out in s.3 which I do not here reproduce. The first object is “to secure and promote the health, safety and welfare of people at work”.

199 In O’Connor (supra) at 477, Dixon J stated that the received doctrine is that, when a statute prescribes in the interests of the safety of members of the public or a class of them a course of conduct and does no more than penalise a breach of its provisions, the question whether a private right of action also arises must be determined as a matter of construction.

200 This principle and its application to the Act and the Regulation was referred to by McColl J in the abovementioned case. See, in particular, at [94] to [98].

201 In the defendant’s submissions, it was stated that the Regulations pleaded had a “motherhood” flavour to them: paragraph [46]. It is said that they do not specify what should be done in furtherance of the general duty referred to. I accept the argument in that respect so far as Regulations 34 and 35 are concerned.

202 It was further submitted (paragraph [47]) that if the defendant owed a duty of care to the plaintiff, then Regulations 34, 35 and 36 were, in effect, simply re-statements of the common law concepts. It was contended that there was no specificity in any of the Regulations.

203 I accept the submission made in that respect. The Regulations (other than Regulation 39) do not specify a particular action or step to be taken in the elimination or control of risks and, for that reason, I do not consider that the general requirements therein stated are sufficient to create a statutory cause of action that provides a private remedy.

204 So far as Regulation 39 is concerned, it is concerned, inter alia, with “safe access” and to “the roof” of a building etc.

205 On the facts of the present case, the plaintiff was using the scaffolding as a place of work and not as an “access”. The importance of that distinction has arisen in relation to other legislation: see Australian Iron & Steel Pty Limited v Luna (1969) 123 CLR 305. I do not consider Regulation 39 applies to the circumstances of this case.

206 Finally, the provisions of s.8 and s.10 of the Act are similarly general in nature and do not provide for a particular measure or particular action to be taken and lacks the specificity to which I have earlier referred.

207 Accordingly, I conclude that the plaintiff has not established a cause of action based on a breach of statutory duty and his rights against the defendant are, accordingly, to be determined in accordance with the principles that govern common law liability in negligence.

Damages

208 The plaintiff is presently 60 years of age.

209 On 4 April 2004, he attended the Emergency Department of Liverpool Hospital. The following was noted on the Clinical Records of the hospital:-

“Fall from scaffolding approx 4 metres yesterday am, had loc., was confused for short time afterward, remains amnesic to event, multiple cuts and abrasions, nil neck, back, chest or abdo pain, having headaches, feels nauseas and dizzy.”

210 The above record also noted the plaintiff’s complaints of abdominal and left shoulder pain and left sided neck pain. He also had pain over the left scapula.

211 He attended the hospital on 29 August 2004 and reported a sudden onset of left sided lumbar back pain. He was noted to be limping and favouring his left leg.

212 On 15 June 2004, the plaintiff came under the care of Dr Marinkovich. At a fairly early stage, namely, on 19 July 2004, Dr Marinkovich stated that, due to reactive anxiety and depression secondary to the accident, he felt the plaintiff required assessment and treatment by a psychologist.

213 In his report dated 2 February 2005, Dr Marinkovich recorded a considerable range of physical and psychological complaints by the plaintiff. He noted that, on 19 July 2004, he had referred him to Dr V Zepinic for anxiety and depression.

214 The plaintiff came under the care of Dr Manohar, a specialist in rehabilitation from 6 July 2004. A great number of Dr Manohar’s reports were tendered in evidence (Court Book: Volume 1).

215 On 21 February 2005, Associate Professor James van Gelder made a report in which he considered the plaintiff suffered from a non-specific strain to his neck, left shoulder and low back associated with age related changes of cervical spondylosis and degenerative lumbar disc disease. This opinion was essentially repeated in his report of 7 October 2008.

216 Several reports from Dr Y Kai Lee, orthopaedic surgeon, commencing 24 August 2005 confirmed that the plaintiff had developed adhesive capsulitis of the left shoulder.

217 On 15 March 2006, arthroscopic acromioplasty was perform on the plaintiff’s left shoulder. On subsequent reviews, the plaintiff continued to complain of a good deal of pain in the left shoulder region. In his report of 22 March 2007, Dr Lee stated that the plaintiff’s left shoulder condition had been caused or contributed to by the subject accident.

218 The plaintiff was admitted to President Private Hospital for surgery on 12 February 2008 being an arthroscopic capsular release of the left shoulder. He was discharged from that hospital on 13 February 2008.

Plaintiff’s medical evidence

219 Dr Kevin Bleasel, neurosurgeon, in his report of 1 February 2005 expressed his opinion that the plaintiff had suffered extensive soft tissue injuries to the cervical region of both shoulders and arms and to the lumbar region with the probable disc legion at L5/S1. He considered that he had a “serious impairment of activities of daily living”. He also stated that he considered the plaintiff to be quite unfit for any type of employment and that the plaintiff was not making any significant improvement. He noted that there had been a severe psychological upset related to his constant pain and his unemployment.

220 In his report of the same date involving assessment of the level of impairment, he considered that there was a 20% upper limb impairment which was related to his left shoulder problems.

221 Dr Bleasel reviewed the plaintiff on 13 March 2007 and noted that Dr Lee had carried out an arthroscopy of the left shoulder on 1 March 2006 but that it had not helped the plaintiff. Dr Bleasel noted that his change of personality had made life difficult and had led to the separation with his wife.

222 Dr Bleasel noted that he had completed a ten-treatment course of physiotherapy with hydrotherapy but this had not helped his shoulder problem. He noted, according to the history, that the plaintiff had difficulty walking when the pain was bad. He was then taking a number of medications including an antidepressant, Lexotan.

223 Dr Bleasel considered that the plaintiff gave his history in a straight-forward fashion. He noted that head and neck movements were much restricted and there was pain, tenderness and spasm of the paravertebral muscles.

224 Dr Bleasel considered that there had been no improvement in the plaintiff’s condition.

225 Dr John F Davis, consultant in occupational medicine, in his report of 16 March 2007 (Exhibit C), reviewed in some detail the personal and medical history of the plaintiff. He considered that he had suffered a significant traumatic injury in the fall, in particular, injury to the cervical and lumbar spine and specific injury to the left shoulder with development of impingement for which he believed he would eventually require a decompression procedure.

226 In addition to his physical injuries, Dr Davis considered that the plaintiff also suffered from quite considerable psychological trauma. He considered that he probably had developed a chronic pain syndrome.

227 Dr Davis was of the opinion that as a result of his injuries, that the plaintiff was restricted in relation to activities such as heavy lifting and carrying, repetitive or strain flexion, prolonged travel and working above waist level, forceful activity or any repetitive work with his left upper extremity. He considered that, given the nature of his injuries, he did not believe that he would be able to enter, what was referred to as, “formalised employment”.

228 In respect of future treatment, he considered that the plaintiff should be referred for multi-disciplinary pain management at Royal North Shore Hospital. He estimated the cost of such a programme to be $7,500.

229 Due to his difficulties, he considered that he should be provided with commercial domestic assistance at a level of six hours per week on an ongoing basis.

230 Dr Drew Dixon, in his report of 8 May 2008, also considered that the plaintiff suffered from persisting pain in his cervico-thoracic region with stiffness and pain in his lower back.

231 Dr Dixon, like other examining medical practitioners in this case, considered that the plaintiff was not fit for employment as at the date of his examination, particularly manual work. His prognosis for returning to manual work was guarded.

232 Dr Dixon stated that the plaintiff required analgesic medication as well as night sedation. He estimated the cost of such medication would be $70 per month for the next five years.

233 In his report of 26 November 2008, Dr Dixon stated that the plaintiff was unfit for employment, including pre-injury duties and his prognosis for returning to work remained guarded.

234 He considered that he required ongoing analgesia and anti-inflammatories and was taking Mogadon for night sedation. The cost of such medications would be $90 per month for the next five years.

235 In his most recent report of 11 March 2010, Dr Dixon considered the plaintiff appeared unlikely to return to a remunerative occupation in the foreseeable future. He considered that he remained permanently partially, if not totally, incapacitated for his pre-injury work and any other occupation, given his prior training, education and experience.

236 He considered that he needed a regular review by his general practitioner each month at a cost of $65 per visit for the next two years and then each three months for the next three years. He considered that a cortisone injection in his left shoulder would be required which, if done be a radiologist, would cost $200.

237 Dr Dixon also said that he would require review by a shoulder specialist at a cost of $180.

238 He confirmed that he required ongoing analgesic medication as well as sedation at the cost of $70 per month for the next five years.

239 In relation to the question of domestic assistance, he, as with Dr Bodel, assessed this as a requirement for domestic assistance of six hours per week to do domestic chores, yard work and home maintenance.

240 Dr Clark, psychiatrist, accepted that the plaintiff did suffer from a diagnosed psychiatric disorder which he termed Severe Depression. He considered he was totally impaired and could not work at all.

241 The plaintiff relied upon the report of a physiotherapist, Jane Rorke. In a very detailed report dated 20 February 2008, Ms Rorke dealt with the plaintiff’s physical, cognitive and psychological status. Ms Rorke addressed the question as to the need for assistance. She stated that the disabilities suffered as a result of injury sustained in the accident had impaired the plaintiff’s ability to carry out domestic chores, property maintenance and paid work. Ms Rorke expressed the opinion that he required 8.23 hours per week of paid assistance in his current living situation. This level of care, she stated, would increase for a period of 6 to 12 weeks following any future operations.

Defendant’s medical evidence

242 The defendant tendered reports from a number of medical practitioners including neurologists (Dr Ronald Joffe and Dr Ross Mellick), an orthopaedic surgeon (Dr James Bodel), a psychiatrist (Dr Selwyn Smith), a psychologist (Dr Wendy Roberts) and an ENT surgeon (Dr Glen Croxson).

243 Dr Joffe, in his report of 21 November 2007, considered that the plaintiff suffered soft tissue injuries in respect of his head and spine and had no permanent neurological deficit. He was unable to comment on his shoulder problem.

244 Dr Mellick, in his report of 1 April 2009, stated (p.4)

“… Mr Sijuk now has marked functional abnormalities with illness behaviour and chronic pain.”

245 He said that the only sign of possible of disability was in the plaintiff’s left shoulder (p.5).

246 Dr Mellick considered that he was not fit for his pre-injury employment because of widespread symptoms and the marked functional abnormalities.

247 Dr Bodel, in his report of 29 May 2007, set out a detailed history of injury and details concerning his clinical examination of the plaintiff. The plaintiff complained of tenderness in the trapezius muscles at the base of the neck on both sides, but involuntary muscle spasm was not evident. He had a reduced range of neck flexion extension and rotation in all directions.

248 He noted that the plaintiff complained of difficulty with lifting heavy weights and that this was consistent with the injury to the neck, back and left shoulder.

249 Dr Bodel concluded:-

“He would have difficulty with any activity that requires repetitive bending, twisting or lifting or strenuous and repetitive tasks with the left arm.

This gentleman requires approximately three hours domestic assistance per week because of the effects of the ongoing complaints.

This gentleman’s overall prognosis for improvement and recovery is very guarded.”

250 Dr Bodel, in this report of 29 May 2007, assessed at 15% upper extremity impairment in relation to left shoulder movement.

251 On review, on 26 March 2009, Dr Bodel in his report of that date noted that the plaintiff was still in receipt of workers compensation payments and had not been able to return to any form of paid employment.

252 He referred to the fact that, by the time of his further review, the plaintiff had undergone two further surgical procedures on the left shoulder and that, following what, in fact was a third surgical procedure, he had experienced additional pain, the surgery having been of no benefit. He noted that the plaintiff had been assessed by Dr Bleasel on 13 March 2007 and that Dr Bleasel had found a restricted range of shoulder movement, Dr Bodel noting “… that is consistent with the clinical findings that I have seen today” (p.5).

253 Dr Bodel also stated (p.6):-

“This gentleman has ongoing complaints in the neck and back and left shoulder consistent with the pathology that has been identified clinically.”

254 Dr Bodel also observed (p.6):-

“There is a causal link between the episode of injury that occurred at work and the ongoing pathology in each of the injured areas.”

255 In relation to work capacity, Dr Bodel considered that he was unfit for all work and, in particular, unfit for his pre-injury work (p.7).

256 Dr Bodel also stated that he would require domestic assistance for household maintenance and cleaning activities and, based on his clinical presentation, he opined that he needs approximately six hours’ domestic assistance in respect of heavy household maintenance and cleaning activities that he could no longer do as a result of the specific injuries to the neck, back and left shoulder.

257 Dr Bodel finally stated that he considered the plaintiff’s prognosis for recovery was poor. The only future treatment he considered was self-directed home-based exercises and analgesic medication.

258 Dr Selwyn Smith, in his report of 5 May 2009, stated:-

“From a psychiatric point of view, Mr Sijuk is currently demonstrating features of a chronic pain disorder associated with psychological factors. By his own account, his predominant presentation pertains to pain in several anatomical sites, particularly his left shoulder, neck and back …”

259 Dr Smith considered that, in all probability, psychological factors were playing an important role in the severity, exacerbation and maintenance of his pain. He did not, however, consider that he demonstrated diagnostic criteria for a diagnosis for Post-Traumatic Stress Disorder. Dr Smith considered that, given the history to date, it was unlikely that the plaintiff would demonstrate any significant improvement or recovery.

260 Dr Smith confirmed the views expressed in his report on 5 May 2009 in his later report of 8 May 2009.

261 Dr Wendy Roberts provided an extremely lengthy and detailed report dated 29 April 2008. It is unnecessary here to analyse in any details the contents of the report. In it, she expressed the opinion that, in terms of his psychological functioning, the plaintiff should be capable of full-time open employment.

262 In her further lengthy and detailed report dated 6 May 2009, Dr Roberts reported on a further review of documentation and on psychological testing. She reported on what was referred to as a lack of co-operation by the plaintiff and the difficulty of undertaking a full range of tests. She noted that he appeared to have been abusing medication and presented as “pain focussed”. However, she did not consider a diagnosis pain disorder would apply in his case (paragraph 19.16).

263 I note that the opinion in this respect is somewhat at odds with the opinion of Dr Smith.

Findings as to impairment and incapacity

264 The medical evidence establishes that the plaintiff suffered physical injuries that culminated in significant physical and economic incapacity. The plaintiff has only pursued physically demanding occupations up to the time of the accident. The left shoulder disability has clearly developed into a chronic condition and has prevented and will prevent him from returning to his pre-injury occupation and any other job requiring the use of the upper limbs to discharge work of a physical nature.

265 Whilst all of the plaintiff’s physical symptoms do not have a clear pathological basis, it is clear that he has been and remains significantly disabled by his neck/left shoulder condition. That condition has incapacitated him for most forms of work. To his physical condition has been added the disabling effect of a chronic depression.

266 The plaintiff has, on the evidence, been effectively totally incapacitated for work from 3 April 2004 to date and continuing. He is likely to remain so. I find accordingly.

(1) Non-economic loss

267 The determination of damages for non-economic loss is to be made in accordance with the provisions of s.16 of the Civil Liability Act 2002. The assessment involves a comparison with the plaintiff’s position with that of a most extreme case.

268 In the assessment, I take into account the fact that, at the date of injury, the plaintiff was a relatively healthy person who was able to undertake a reasonably heavy form of employment as a brick cleaner. I also take into account his age at the date of the injury and his present age as well as the medical evidence which supports the conclusion which I reach, namely, that the plaintiff has suffered with significant pain and disability, especially with his left neck/shoulder region and has thereby been prevented from working. The disabilities have been extensive enough to have impacted significantly on his personal life, in particular, in preventing him from performing the outdoor activities formerly undertaken by him around the house and limited his ability to be self-sufficient with regard to domestic chores.

269 I further take into account the medical evidence to which I have referred above that supports the development over the years since April 2004 of a significant psychiatric disorder, although allowing, as I do, for some psychological features may not be strictly injury related to his injuries.

270 Taking all such matters into account, I consider that the plaintiff’s non-economic loss in terms of s.16 of the Civil Liability Act is to be assessed at 31% or $123,000.

(2) Past economic loss

271 The plaintiff’s pre-injury earnings were relatively low and varied from year to year. Copies of his tax returns are in Court Book, Volume 2 (pp.427 to 571) (Exhibit D).

272 In the period 2002 to 2004, the earnings were:-

2000 $370.46 gross per week

2001 $382.63 gross per week (net wages approximately $450 per week)

2002 $705.86 gross per week (net wages approximately $550 per week)

273 The plaintiff’s claim for past economic loss is for the period 3 April 2004 to date at $500 per week. Reliance was placed upon relevant award rates fro 2002 to 2004 and 2007 as set out in MFI 4. The rates based thereon may be summarised as follows:-

Building and Construction Industry (State) Award (8 July 2002)

2002 Base Rate and allowances: $536 gross per week, $476 net per week

2004 Base Rate and allowances: $591.50 gross per week, $522.50 net per week

2007 Base Rate and allowances: $656.25 gross per week, $575.25 net per week

274 The plaintiff’s claim was, accordingly, discounted on the award rates to $500 net per week.

275 In the defendant’s written submissions, it was contended that, as at May 2004, the plaintiff’s gross earnings were $550 per week ($450.11 net) and that, if the Court is satisfied that he has been totally incapacitated, then past economic loss should be calculated at $445 per week. It was also submitted the plaintiff has had a past residual earning capacity. I do not consider that it is realistic to regard the plaintiff as only having a partial physical and economic earning capacity. The medical evidence overall, in my opinion, establishes the contrary, that is effectively, total incapacity for work, past and future.

276 Although the plaintiff’s pre-injury earnings fluctuated, I consider I should accept the submission for the plaintiff, having regard to the above evidence, to the effect that past economic loss should be assessed and a loss based on an average of net earnings of $500 per week. The period 3 April 2004 to date is 315 weeks. The calculation, accordingly, is 315 x 500 equalling $157,500.

277 I, accordingly, assess and award past economic loss as $157,500.

(3) Fox and Wood

278 The Fox and Wood component to be allowed for in the damages to be awarded is the amount of $7,669.80.

(4) Future economic loss

279 Future economic loss is to be assessed having regard to the provisions of s.13 of the Civil Liability Act.

280 It was submitted for the defendant that the plaintiff has not adduced evidence that would satisfy the Court that his “most likely future circumstances but for the injury” would have been any different to those that existed in the four years prior to his injury, that is, fluctuating earnings that approximated 49% of the average total male earnings in this State. The prospect of a fluctuation in future earnings the plaintiff would otherwise have received but for his injuries is to be taken into account in making an appropriate allowance by the application of an appropriate deduction for that contingency.

281 Taking into account some residual earning capacity, the defendant submitted that any award for future economic loss should be based on no greater allowance than $420 per week for a period of five years. When discounted by 15% for vicissitudes, the total amount for future economic loss on this approach would be $82,645.

282 The plaintiff’s claim is based on a loss of $650 net per week.

283 The calculation of past economic loss, as noted above, has been calculated over the whole of the period April 2004 to April 2010 on an average rate of $500 net per week.

284 To calculate future loss at no more than $420 per week for the future years would not, in my opinion, properly reflect the extent of the plaintiff’s economic incapacity or represent a fair assessment, concluding as I do that the plaintiff had a long work history and it is clear on the medical evidence that it is highly unlikely that the plaintiff will return to any form of remunerative employment in the future.

285 It is true that the plaintiff’s earnings fluctuated between 2001 and 2004. However, he did earn approximately $550 per week in the 2002 year. The amount of $650 per week for the future, I consider in all the circumstances, to be a moderate and not an extravagant rate. I propose, however, to apply a somewhat higher discount for vicissitudes than the conventional amount of 15%.

286 The net earnings for a period of almost three years under the relevant State award was about $575 net per week (see above). Having regard to the fact that award wages and average wages have increased over the past three years, the amount of $650 net per week, I consider, is the appropriate amount for the purpose of calculating future economic loss in the present case. I have, however, as I have stated above, increased the allowance for vicissitudes to 20%. The calculation on this basis is as follows:-

5 years at $650 net per week

Multiplier 231.5 less 20% for vicissitudes $120,903.75

(5) Past out of pocket expenses

287 The amount of $142,791.18 is claimed and I understand most, if not all, of this amount has been paid by way of worker’s compensation. That amount is to be provided for in the judgment.

(6) Domestic Assistance

288 The evidence in the plaintiff’s case in relation to the claim for domestic assistance is supported by evidence given by the following witnesses:-

(a) Lay witnesses

• The plaintiff

• Mr Tampolja

• Mr Gatis

(b) Expert witnesses

• Ms Jan Rorke, physiotherapist, (8.23 hours of paid assistance per week).

• Dr John F Davis, Consultant in Occupational Medicine, (6 hours domestic assistance per week).

289 Dr Bodel, in his report dated 26 March 2009 (Exhibit 7) also stated that the plaintiff needs approximately six hours’ domestic assistance in respect of household matters (p.7).

290 The evidence given by the lay witnesses, which I accept, may be summarised as follows.

291 The evidence of the plaintiff:-

(1) The plaintiff said, after the accident, his wife attended and did outside work and that “she did everything” (transcript, p.14).

(2) He said that after he separated from his wife in August 2006, he had help from other people including, in particular, his sister (p.14). He also said that, after the separation from his wife, his wife continued to help him even though she was busy with work and other activities. He said that, once a week, she collected all the washing, took it home and brought it back again (p.15).

(3) The plaintiff also said that his sister “helps a lot when she cooks for her family …” . She attended at his unit and did cleaning work and tidying up (p.15). The plaintiff said he was unable to do the work himself because of his symptoms which he described. He said that his sister attended regularly after the separation from his wife. He said that in respect of his sister’s attendance, “I can say easily at least two or three times per week …” (p.15). He said that when he moved to the Housing Commission unit, that his sister was coming all the time and more frequently but later “may be two or three days” (p.15). She would stay sometimes depending on two hours or up to four if she cooked for him (p.15).

292 The evidence of Mrs Sijuk:-

(1) Mrs Sijuk said that, after the separation, she continued to help the plaintiff. She said she assisted him with washing, ironing, driving him to doctors appointments and other activities. She said that she could not do too much because she worked herself and had to support herself.

(2) Mrs Sijuk said that she knew that the plaintiff’s sister was helping him.

293 The evidence of Ms Zora Tampolja:-

(1) Ms Tampolja said that she visited the plaintiff after he separated from his wife. She said she cleaned, cooked and assisted him with shopping (transcript, p.88).

(2) She estimated that, at first, she attended on the plaintiff almost every day and then after that, two or three times a week, “or maybe more if I can” (p.88).

(3) Ms Tampolja said that she would estimate that on each visit she would have spent two to three hours. Sometimes she would even spend three to four hours (p.88).

(4) She said that many times she would cook at her own home and then bring the food to the plaintiff.

(5) In cross-examination, Mr Tampolja agreed that the Warwick Farm unit was a fairly small place.

(6) She said that, whilst the plaintiff could do some shopping, he had difficulty crossing the road where there was a little shop. She said it was too far for him to walk to the supermarket.

294 The evidence of Mr Ioannis Gatis:-

(1) Mr Gatis said that he helped the plaintiff with shopping and rendered a little help inside the house.

(2) Mr Gatis said he had been rendering some assistance since February 2009.

295 The above evidence, in my assessment, supports the claim made for past domestic loss. The plaintiff has, since the date of the accident, and, in particular, after the separation from the wife, by reason of his disabilities, has had a need for past domestic assistance and that he has, in fact, been assisted by his wife, Ms Tampolja and, to a very limited extent, by Mr Gatis. Such assistance overall, doing the best one can on the evidence, would average out at at least six hours per week to date and possibly somewhat more than that

296 The total amount claimed for past domestic assistance calculates at $52,594. The calculation is not a precise exercise, given the necessarily imprecise evidence as to the extent of hours rendered by family members and the fact that no time records were maintained in respect of such assistance. I consider, in all the circumstances, the figure of $52,594 claimed should be reduced and reduced and rounded off at $45,000 and that amount will be allowed for in the assessment of damages.

297 In terms of s.151Z(2), I have determined a notional liability of the plaintiff’s employer at 10% and the defendant’s liability at 90%. The total common law damages payable by the non-employer defendant are $773,426.14. The past and future economic loss is $279,403.75. Upon application of the formula for calculation of workers compensation defence under s.151Z in accordance with the formula laid down in Grljak v Trivan Pty Limited (1994) 35 NSWLR 82 at 88 the appropriate deduction is calculated to be $49,402.24. The resulting gross damages are $724,023.90. Deducting 15% in respect of the assessment for contributory negligence by the plaintiff the total damages to be awarded are calculated to be $615,420.33

298 Attached to this judgment is a schedule of damages.

299 I propose the parties have an opportunity to check the calculations set out above. Leave is granted to apply in respect thereto. Subject to that matter, I propose entering judgment in favour of the plaintiff in the amount of $615,420.33 and to make an order for costs in the proceedings in favour of the plaintiff.

SIJUK v ILVARIY PTY LIMITED

SUMMARY OF DAMAGES

1.
Non-economic loss
31% of a most extreme case $123,000.00

2.
Past economic loss
(1) Past wage loss at $500 net per week

(2) Interest on wage loss after allowance for workers compensation payments

$157,500.00
$1,000.00 $158,500.00

3. Fox and Wood component $7,669.80

4.
Future economic loss
5 years at $650 net per week
Multiplier 23.15 less 20% for vicissitudes $120,903.75

5.
Past and future superannuation
11% on net $33,979.41

6. Past out of pocket expenses $142,791.18

7.
Future out of pocket expenses
(1) General practitioner consultations:

$15 per week (based on Dr Dixon’s assessment of consultations, one a month at $65 per consultation)

(2) Specialist (orthopaedic consultations) :
Averaged to $7.50 per week (radiologist – ultrasound $200 and shoulder specialist once a year at $180 totalling $380 per annum or $7.50 per week
(3) Medications :
$18 per week (based on assessment of Dr Dixon of $70 per month)

Multiplier 753.6 less 35% for vicissitudes = $30,520 less 35%
$15.00
$7.50
$18.00
$40.50
(per week)
$22,890.00 $22,890.00

8. Past Domestic Assistance $45,000.00

9.
Future Domestic Assistance
25 years at 5 hours per week at $35 per hour
Multiplier 753.6 less 35% for vicissitudes $118,692.00

Total common law damages $773,578.30

Final adjusted figure taking into account s.151Z(2) reduction and 15% contributory negligence reduction $615,420.33

**********

CITATION:	SIJUK v ILVARIY PTY LIMITED, trading as, CRAFTSMAN HOMES [2010] NSWSC 354
HEARING DATE(S):	22, 23, 24 and 25 March 2010
JUDGMENT DATE :	29 April 2010
JURISDICTION:	Common Law
JUDGMENT OF:	Hall J at 1
DECISION:	The defendant is liable in negligence to the plaintiff for breach of duty - unsafe scaffolding. Plaintiff's employer notionally liable (10%); Defendant liable (90%); Plaintiff 15% contributory negligent.
CATCHWORDS:	NEGLIGENCE - liability of builder/occupier to employee of sub-contractor - employee to perform brick cleaning work - fell through hole of gap in the scaffolding which had not been present when inspected three days before - sub-contractor was plaintiff's wife - unsophisticated sub-contracting entity - previous contracts with the defendant - defendant knew plaintiff's wife not experienced in safety aspects of bricklaying work - plaintiff's attendance at site on a Saturday when no other employees present was a practice followed with brick cleaning - whether specific notice given by sub-contractor of plaintiff's intention to attend site - application of s.151Z Workers Compensation Act - defendant 90% - plaintiff contributory negligence 15%
LEGISLATION CITED:	Civil Liability Act 2002 Occupational Health and Safety Act 2000 Occupational Health and Safety Regulation 2001 Workers Compensation Act 1987
CASES CITED:	Australian Iron & Steel Pty Limited v Luna (1969) 123 CLR 305 Consolidated Broken Hill Limited v Edwards [2005] NSWCA 380 Eastside Scaffolding v Kazic [2008] NSWCA 146 Grljak v Trivan Pty Limited (1994) 35 NSWLR 82 Joslyn v Berryman [2003] HCA 34; (2003) 214 CLR 552 Pollard v Baulderstone Hornibrook Engineering Pty Limited [2008] NSWCA 99 Maricic v Dalma Formwork (Australia) Pty Limited [2006] NSWCA 174 O'Connor v S P Bray Limited (1937) 56 CLR 464 Thompson v Woolworths (Queensland) Pty Limited [2005] HCA 19; (2005) 221 CLR 234 TNT Australia Pty Limited v Christie [2003] NSWCA 47; (2003) 65 NSWLR 1 Waverley Council v Ferreira [2005] NSWCA 418; (2005) Aust Torts Reports 81-818 Wynn Tresidder Management v Barkho [2009] NSWCA 149
PARTIES:	MILAN SIJUK v ILVARIY PTY LIMITED, t/as, CRAFTSMAN HOMES
FILE NUMBER(S):	SC 09/297729
COUNSEL:	P: G Bateman D: D P O'Dowd
SOLICITORS:	P: Martin Bell & Co D: James Tuite & Associates

1.	Non-economic loss 31% of a most extreme case	$123,000.00
2.	Past economic loss (1) Past wage loss at $500 net per week (2) Interest on wage loss after allowance for workers compensation payments	$157,500.00 $1,000.00	$158,500.00
3.	Fox and Wood component	$7,669.80
4.	Future economic loss 5 years at $650 net per week Multiplier 23.15 less 20% for vicissitudes	$120,903.75
5.	Past and future superannuation 11% on net	$33,979.41
6.	Past out of pocket expenses	$142,791.18
7.	Future out of pocket expenses (1) General practitioner consultations: $15 per week (based on Dr Dixon’s assessment of consultations, one a month at $65 per consultation) (2) Specialist (orthopaedic consultations) : Averaged to $7.50 per week (radiologist – ultrasound $200 and shoulder specialist once a year at $180 totalling $380 per annum or $7.50 per week (3) Medications : $18 per week (based on assessment of Dr Dixon of $70 per month) Multiplier 753.6 less 35% for vicissitudes = $30,520 less 35%	$15.00 $7.50 $18.00 $40.50 (per week) $22,890.00	$22,890.00

8.	Past Domestic Assistance	$45,000.00
9.	Future Domestic Assistance 25 years at 5 hours per week at $35 per hour Multiplier 753.6 less 35% for vicissitudes	$118,692.00
Total common law damages	$773,578.30
Final adjusted figure taking into account s.151Z(2) reduction and 15% contributory negligence reduction	$615,420.33