Takacs v The Uniting Church - [2007] NSWSC 175

No judgment structure available for this case.

Reported Decision:
161 IR 155

New South Wales

Supreme Court

CITATION: Takacs v The Uniting Church [2007] NSWSC 175

HEARING DATE(S): 20/03/06, 21/03/06, 23/03/06

JUDGMENT DATE :
6 March 2007

JURISDICTION: Supreme Court

JUDGMENT OF: Rothman J

DECISION: (i) judgment for the plaintiff in an amount of $913,390;; (ii) the defendant shall pay the plaintiff’s costs of and incidental to the proceedings, as agreed or assessed.

CATCHWORDS: PERSONAL INJURY – workplace injury – breach of statutory duty – failure to fence – failure to provide safety harness – painting contractor engaged to measure and quote – where owner/occupier employs person to coordinate building work who undertakes actual supervision then employer liable for injury to contractor – Construction Safety Act 1912 – meaning of “carries out” – meaning of “work in” as “work related to” or “work intimately connected with” - NEGLIGENCE – common law – occupier’s liability - CONTRIBUTORY NEGLIGENCE – relative causation - DAMAGES – no allowance for superannuation benefits where business income basis of economic loss

LEGISLATION CITED: Construction Safety Act 1912 (NSW) (Act No. 38)
Construction Safety Regulations 1950 (NSW)

CASES CITED: Australian Safeway Stores Pty Limited v Zaluzna (1987) 162 CLR 479
Bankstown Foundry v Braistina (1986) 160 CLR 301
Bhambra v Roet [2003] NSWCA 393
Buckman v Flanagan (1974) 133 CLR 422
Davey v Skinner [1961] NSWR 216
Davis v Wagga [2004] NSWCA 34
Ellavale Engineering v Pilgrim [2005] NSWCA 272
Griffiths v Kerkemeyer (1977) 139 CLR 161
Heatherington v Mirvac [1999] NSWSC 443
Hollis v Vabu (2001) 207 CLR 21
Husher v Husher (1999) 197 CLR 138
Kappadoukas v Fransepp [2006] NSWCA 366
Kolodziejczyk v Grand View [2002] NSWCA 267
Lenz v Trustees of the Catholic Church [2005] NSWCA 446
Maggiotto Building Concepts v Gordon [2001] NSWCA 65
Multiplex Constructions Pty Ltd v Lopez [2004] NSWCA 319
Papatonakis v ATC (1985) 156 CLR 7
Podrebersek v AI&S (1985) 59 ALJR 492
Project Blue Sky v ABA (1998) 194 CLR 355
R v Central Reference Board; ex parte Theiss (1948) 77 CLR 123
R v Gray; ex parte Marsh (1985) 157 CLR 351
R v Isaac; ex parte TWU (1985) 159 CLR 323
R v Neil; ex parte Cinema International (1976) 134 CLR 27
Thompson v Woolworths (2005) 221 CLR 234
Todorovic v Moussa [2005] NSWCA 100

PARTIES: P: John Ernest Takacs
D: The Uniting Church in Australia Property Trust (NSW) t/as Northaven Retirement Village

FILE NUMBER(S): SC 020224/2005

COUNSEL: P: Mr P.G. Mahony SC, Mr R.E. Quickenden
D: Mr A.C. Bridge SC, Mr R.G. Gambi

SOLICITORS: P: Mr J.H.G. Finney (CBD Law Solicitors & Attorneys)
D: Mr C.B. Brierley (Ebsworth & Ebsworth Lawyers)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ROTHMAN J

6 March 2007

20224/2005 TAKACS, John Ernest v UNITING CHURCH IN AUSTRALIA PROPERTY TRUST (NSW) T/AS NORTHAVEN RETIREMENT VILLAGE
JUDGMENT

1 ROTHMAN J: The plaintiff suffered injury when he fell approximately 9 metres (3 stories) from the roof on premises owned and operated by the defendant. The injury occurred on 4 May 1999.

2 The plaintiff sues for damage arising out of the injury claiming that the defendant was negligent and in breach of Regulations 73 and 74 of the Construction Safety Regulations 1950 (NSW) made pursuant to the Construction Safety Act 1912 (NSW) (Act No. 38). To the extent that damages arise under the common law, issues of contributory negligence arise.

Facts

3 The plaintiff, having been born on 28 January 1967, was 32 years of age at the time of the incident. The plaintiff completed a four year apprenticeship as a painter. He worked for a business called Douglas Painting Services for one year and thereafter purchased the business, changing its name to Brush-Rite. The work performed by the plaintiff in that business was the painting of shipping containers and commercial buildings (although, in the latter case, not generally new construction).

4 The plaintiff operated the business that he had acquired as a partnership and had done so from approximately June 1997.

5 The plaintiff is married with three children, all of whom are at school. Prior to the injury about which complaint is made, he played sport, being Rugby League and Judo and played Golf every Saturday. In 1994, some years prior to the injury subject to the present proceedings, the plaintiff was involved in a motor vehicle accident and suffered some injury although, on the material before the Court, it was relatively minor and the symptoms and pain from that injury disappeared after approximately 6 months. The plaintiff had no further problems from that earlier injury.

6 The plaintiff performed work for a variety of companies including Telstra, Arnott’s Biscuits, McDonalds and the like. His work included painting machinery, walls and buildings, ovens and other machinery and other maintenance. He was, as is obvious, an experienced painter who was aware of the means of safe use of ladders. Notwithstanding his apprenticeship and experience he had never worked on roofing and had never had occasion to build scaffolding.

7 As already stated, on 4 May 1999 the plaintiff fell from the roof of the premises owned and occupied by the defendant. The plaintiff had gone to the premises at the invitation of Mr Bruno Bagnara, the defendant’s building maintenance manager.

8 The plaintiff had worked for the defendant on a number of occasions at different locations on the North Shore of Sydney. On each occasion the plaintiff was invited to measure, quote and ultimately perform work. On each occasion the arrangement was made with Mr Bruno Bagnara.

9 The evidence is that Mr Bagnara took care of the maintenance of the buildings of the defendant and I infer that he organised, coordinated and supervised general building maintenance and minor construction work for the various premises of the defendant. He was employed by the defendant and had an office in the basement of the defendant’s premises at the Northaven Retirement Village.

10 On 4 May 1999 the plaintiff received a telephone call from Mr Bagnara who asked him to “come and do a quote”. Mr Bagnara told the plaintiff that he wanted him “to have a look at a roof”.

11 The plaintiff responded that it was getting a little late and that he just wanted to go home and asked if it were possible if he could do it tomorrow. After a short conversation about the then location of the plaintiff, Mr Bagnara said to him:

“You have to drive past here to go home; so just drop in.”

12 On the way to Northaven, the plaintiff collected a friend of his, another painter, Mr John Ayre, to whom he was providing a lift home to the Central Coast where they both lived and where they were intending to go for a drink.

13 On arrival at Northaven the plaintiff and Mr Ayre went to Mr Bagnara’s office in the basement. Mr Bagnara said to him:

“Come with me; come up and I’ll show you what I want you to look at.”

14 At that point the plaintiff, Mr Bagnara and Mr Ayre climbed an internal staircase that went to the top of the building to a locked door. Mr Bagnara unlocked the door and said:

“Come out here.”

The plaintiff did precisely that; at which time he, Mr Bagnara and Mr Ayre were standing on a roof platform on an air-conditioning unit. About 6 foot below the platform was the main roof.

15 The main roof consisted of old profile kliplok roofing. Kliplok roofing is a form of roof sheeting in which the sheets lock together by clips – hence the name. Each sheet consists of a number of ridges with a flat panel between each of them. In the case of this kliplok sheeting, the ridges are not sufficiently distant from each other to be able to place the length of a foot between the ridges, at right angles to them, on the flat panel. As a consequence, it was difficult to walk across the roofing and it would require either walking sideways (placing each foot sideways in the flat panel between the ridge) or placing the foot on two ridges (the heel on one ridge and the toe area on the other).

16 While standing on the platform surrounding the air-conditioning tower Mr Bagnara showed the plaintiff the area of the roof that was, in Mr Bagnara’s view, problematic. There was rust on a section of the roof. The rust that he was shown was between the ridges in the flat panel section of some sheets and was, in the opinion of the plaintiff, very minor. That opinion is not controverted.

17 When the plaintiff saw the section of rust from the platform, he expressed the view to Mr Bagnara that:

“I would have thought there would still be many many years before it needed work.”

Mr Bagnara asked how it would be treated and the plaintiff responded:

“There are paint chemicals you can put on to sort of create a coating to put the rust back into the roof to seal it off.”

Mr Bagnara responded that he wanted to get a quote to paint the roof. To that comment, the plaintiff responded:

“This sort of roof, if you want to do it properly, you should use industrial paints, so you are going to get that long-term issue out of it. The cost of industrial painting on this size roof; surely it would be cheaper to get a roofer in and replace it.”

Mr Bagnara said:

“Still just measure it, and give me a quote and we’ll talk about it later.”

18 The three of them then moved around the platform to an area where another section of the roof (or another part of the roof) could be seen and Mr Bagnara said:

“You know we want you to measure this roof too.”

The plaintiff responded:

“How are we going to get down there?”

19 After a further currently irrelevant conversation and at Mr Bagnara’s suggestion, the plaintiff and Mr Ayre waited while Mr Bagnara obtained a ladder which fitted into a section of the platform where the balustrade was not glassed in. He lowered the ladder through the balustrade onto the roof below. Mr Bagnara then said words to the following effect:

“Go down and measure the roof. I’m going back to my office; as soon as you measure it bring the ladder back to me and go home.”

20 It seems the plaintiff commented on the design and the absence of glass panels in two places on the air-conditioning platform to which Mr Bagnara said:

“This is always how we get access to that roof.”

21 The ladder, as earlier stated, was placed in the gap in the balustrade to the roof below by Mr Bagnara leaning it back on the chilling tower. The ladder was unsecured. In accordance with the abovementioned statement of Mr Bagnara, the plaintiff climbed down the ladder as did Mr Ayre. Mr Ayre stayed at the base of the ladder holding the coil end of a measurement tape while the plaintiff walked out over the roof in order to do one measurement of the roof’s length and one measurement of its breadth. The plaintiff held the end of the tape measure and the tape moved out of the coil as the plaintiff moved away from Mr Ayre.

22 As earlier stated it was not possible to walk normally on the roofing. The plaintiff walked on the roofing by having the heal of his shoe on one ridge and the front of his shoe on the next; thereby walking on two ridges at a time and the major part of his foot (or boot) was unsupported. The plaintiff was wearing steel-capped work boots. The top of the ridges were approximately 50 to 60 millimetres in height above the flat panel of the sheeting.

23 The intention was for the plaintiff to go to the end of the roof, crouch down and hold the tape so that Mr Ayre could read the measurement required by Mr Bagnara.

24 Surrounding the roof sheeting was a parapet the height of which varied because of the slope of the roof. At one end of the roof the parapet was approximately 600 millimetres and at the far end (the end to which the plaintiff was walking) it was at or about shin height.

25 As the plaintiff approached the end of the roof he crouched in order to place the tape along the roof and measure it relatively accurately. As he crouched his foot slipped between the ridges of the kliplok, got caught there and the plaintiff stumbled.

26 It was his right foot that was caught between the ridges of the kliplok and the stumble was enough to put the plaintiff off balance. The plaintiff was unable to regain balance, went to grab for the parapet but, because of its height, or lack of it, was unable to grab it and rolled over the edge of the roof. The plaintiff fell 3 stories, approximately 9 metres, landing on his right upper arm and the right side of his body. He suffered multiple injuries to the details of which I will return later in this judgment.

27 The above recitation of facts is that given by the plaintiff or that which properly flows from an understanding of the plaintiff’s evidence. Mr Ayre was called by the plaintiff and generally corroborated the evidence of the plaintiff, although he had little or no recollection of the terms of the conversations to which I have referred.

28 It is appropriate for the Court to note that the plaintiff was a believable witness who gave evidence, it seems, truthfully, honestly and fully. His account of the accident is not controversial. He gave the impression of being generally understated in terms of his injuries, to which I will return, and was prepared to give evidence that was considered by him unhelpful to his case. His evidence was truthful and accurate, if not understated, and I accept it.

29 The defendant adduced no oral evidence and, in particular, did not call Mr Bagnara. The inferences that flow from that course reinforce the impression already gained.

30 From the circumstances recited above, a number of conclusions can be drawn. First, the plaintiff was not an employee of the defendant. Secondly, the defendant employed a construction or building manager whose task was to coordinate and organise the repair and renovation of the buildings used in the business of the defendant. Thirdly, and predominantly because of the immediately preceding statement, the defendant was engaged in construction work (a definition with which I will deal later), although it was not the sole or major undertaking in which it was engaged. Fourthly, as part of that organisation the building manager, Mr Bagnara, contacted the plaintiff (a person who regularly performed work for the defendant) and required him, over his protestations, to attend at a time inconvenient to him. Fifthly, the plaintiff informed the defendant that it was unnecessary, at that time, to paint the roof and that, given the cost of proper treatment of the roof, it would be less expensive to replace it. Lastly, the defendant, through Mr Bagnara, required the plaintiff to descend to the roof, provided the means by which the plaintiff could descend and required the plaintiff to provide, not only a quote for painting, but measurement of the roof, and then to return the ladder to Mr Bagnara.

31 There is no evidence to suggest that any other person was asked to quote on the roof; nor that there was an intention on the part of the defendant to request any other quote. It is also clear that Mr Bagnara, who at all relevant times was the employee of the defendant, retained control over what was required of the plaintiff as to both end product and the manner in which that end product would be derived. Thus, it is clear from the conversations, that Mr Bagnara directed the plaintiff onto the roof; directed him to take and provide measurements of the roof; and directed him as to the time at which he should come to perform the work. Mr Bagnara also directed him as to the means by which he would gain access to the roof and at all stages had control over whether, if at all, the plaintiff would gain such access.

32 Liability is claimed on two bases: breach of the Construction Safety Regulations and on the basis of common law.

Liability: Statutory Breach

33 The Construction Safety Act 1912 (NSW) (Act No. 38) as it was in force at the time of the accident on 4 May 1999 had relevant definitions which were:

(a) work in constructing, erecting, installing, adding to, altering, repairing, equipping, finishing, painting, cleaning, signwriting, sheathing, spraying, dismantling or demolishing or any other prescribed operation that:

(i) is done in relation to a building or structure, at or adjacent to the site thereof, or ….”

‘Constructor’, in relation to any construction work, means the person who by himself or herself (otherwise than as a servant or agent of the person carrying out that work) or by the person's servants or agents carries out that work.”

34 The relevant provisions of the Construction Safety Regulations 1950 (NSW) made pursuant to the Construction Safety Act 1912 (NSW) are:

shall conform to the requirements of these Regulations, for all work which cannot be done safely by a person standing on permanent or solid construction, except when such work can be done safely from ladders constructed in conformity with the provisions of these Regulations,

(3) provide means by fencing or otherwise for securing the safety of any person working at a place from which he would be liable to fall a distance of more than 1.8 m,

Provided that it shall be permissible to remove when necessary any guard rail, fence or part thereof for the purpose of handling materials or for the installation of other work, subject to such guard rail, fence or part thereof being at once replaced upon completion of such work,

Regulation 73

35 Two issues arise in the determination of liability for what is alleged to be a breach of the statutory duty: first, the claim that, in these circumstances, the defendant “carried out” construction work; and secondly, whether the work in question was “construction work”. In my view, the two issues are inextricably interwoven. It is necessary to explain. Authorities in the area tend to concentrate on the meaning of the words “carries out” in Regulation 73 and analyses of factual issues tend to commence with the well known passage in Buckman v Flanagan (1974) 133 CLR 422.

36 Buckman v Flanagan, supra, determined that the Act and Regulations placed “particular responsibilities upon the person actually carrying out the particular building work, that is to say, doing it himself personally, or by his servants or by those whose acts are in law his acts.” Thereafter, on the basis of that binding authority, the discussion has focused on who is performing the work and whether there is any residual control in the performance of the work by principals to whom, in the case of independent contractors, they have contracted.

37 However, in order to understand fully the history of the section, one ought start with the judgment of the Full Court of the Supreme Court of New South Wales in Davey v Skinner [1961] NSWR 216. In Davey v Skinner the majority judgment of Evatt CJ and Herron J determined that in circumstances where, coincidentally, a church group undertook building work and undertook to provide scaffolding and deliver bricks on that scaffolding to the bricklaying contractor, the bricklaying contractor was carrying out building work and responsible for compliance with Regulation 73 for the scaffolding that it did not supply.

38 In the course of the judgment in Davey, the majority said:

carries out any building work

Mulready v JH&W Bell

39 Interestingly Sugarman J (as he then was), dissented on the basis that it was the church body, who subcontracted to the bricklayers, that was responsible and that was “carrying on” building work. He said:

“The expression ‘building work’ is used many times in the Regulations, not in a single uniform sense and not always in complete consistency with the definition of the same expression in section 3 of the Act…. However, I believe that there is some consistency in the use of the expression in section 6 of the Act and in various of the Regulations, where it refers, in my view, not to each single operation, such as bricklaying, carpentering and so on, in a larger work of constructing or erecting a new building, but to the particular work as a totality.

Where that totality is, as here, the construction or erection of a new building, I find it difficult to accept that section 6 was intended to require each and every sub-contractor for any portion of an entire work of construction or erection to serve the notice therein referred to. I find from Regulation 74 … that a ‘building work’, in the sense there intended, may have ‘parts’ on which particular persons may be engaged …

The subject of the duty and the objects of the rights conferred by Regulation 73 are, respectively, ‘any person who directly or by his servants or agents carries out any building work’ and ‘persons engaged in such building work’. The relationship envisaged is not necessarily, or limited to, that of master and servant or employer and employee, which relationship in any event involves a common law duty of the master or employer to use due care for the safety of his servant or employee. The contemplated relationship is, rather, one of proximity in the wider sense, based on control of the situation, on the one hand, and exposure to risk in that situation, on the other. The ‘persons engaged in such building work’ may include employees, independent contractors working on the job, independent contractors who work on the job along with their own employees, and the employees of independent contractors. To treat the words ‘any person who … building work’ as related to individual operations, such as bricklaying, carpentry, plumbing, tiling, electrical work and so on, would introduce great complexity. It would make it difficult to discover any rational distinction between the subjects and the objects of the duties imposed and the content of the expression which describes them – between the person who ‘carries out’ any building work and the person who is ‘engaged in’ such building work – or to stop short of regarding the first of these expressions as comprehending everybody who, whether as employer or employee, works on the job. ‘Carries out building work’ and ‘engaged in building work’ would thus mean the same thing.” ([1961] NSWR at 224 – 226)

40 It can be seen in the judgment in Davey v Skinner, whether the majority judgment or the dissenting judgment, that at no stage could it be said that the principal contractor was excluded from liability and responsibility for compliance with the Regulations. The difference between the majority and dissenting judgments in Davey is that the majority judgment considered that sub-contractors would, as well as the principal contractor, be responsible for compliance with the Regulations.

41 Davey was the subject of analysis and comment in Buckman, supra. The most quoted passage in Buckman is that which derives from the judgment of the Chief Justice, Barwick CJ, at 427 in which his Honour said:

Project Blue Sky v ABA

Buckman v Flanagan

42 That has been generally understood to exclude principal contractors, or some of them, from the responsibility to comply with the Regulations. However, it is clear from the text of the judgment and in particular the comments of the Chief Justice on Davey, supra, that his Honour was using the term “independent contractors” atypically. The Chief Justice said:

Davey v Skinner

Ryan’s

Case

Buckman

43 It is plain from the above that Chief Justice Barwick was using the term “independent contractor” in a particularly precise and unusual way. The general discrimen between employees and independent contractors is the distinction between a contract of service and a contract for services. Yet his Honour the Chief Justice differentiates “independent contractors” from those engaged “under a contract for services”. It seems that, properly analysed, the Chief Justice took the view that responsibility fell on that contractor who was, or who would be, vicariously responsible for the conduct of persons performing building work, being the building work which was directly responsible for the failure to comply with the regulations. His Honour Justice Stephen expressly agreed with the views of the Chief Justice. He did so after referring to the judicial analysis of both the majority and minority members in Davey v Skinner and the reasons for judgment of other members of the High Court in Buckman. He said:

“The imprecision of the language in which the Regulations as a whole are framed and the extent to which that language affords room for differences in interpretation is manifest.

Buckman

44 The other members of the majority who made orders in or to the same effect as that proposed by the Chief Justice did so for reasons which do not expressly agree with the Chief Justice. Justice McTiernan who, with the Chief Justice and Stephen J, forms the majority judgment, took the view, expressly, that responsibility for compliance with the regulations fell to the person who carried out, or failed to carry out, the work that would be covered by the Regulation and to the contractor, if any, who was vicariously responsible for that person’s conduct. He said:

Buckman

45 Justices Mason and Jacobs did not agree in the reasons of the majority on this question. The majority judgment determines that the term “agents” in Regulation 73 refers to persons for whom the person is vicariously liable. By necessary implication from the terms of the judgment it determines that only such a person who, by servants or agents, as described, is carrying out the building work which gives rise to the risk and/or otherwise gives rise to the breach of the Regulation, is liable. There seems to be little or no discussion on the meaning of the word “building work” except the discussion which refers to the provisions of section 6 of the Act. Chief Justice Barwick came to the view that the terms of section 6 of the Act made clear that only one such person could be carrying out the building work of any particular kind and therefore only one such person came under the obligation to serve the requisite notice on the chief inspector in relation to that work. In that regard the Chief Justice agreed with Mason J.

46 However, Barwick CJ took the view that only the person responsible (directly or vicariously) for the work in question was responsible for compliance with the Act and Regulations now in issue. Translating such an approach to the current circumstances, if taken literally, it would mean that, in some circumstances, no one would be responsible for compliance with the Regulations. Leaving aside the degree of control that the defendant in fact had over the work performed by the plaintiff (to which issue I will return), a painting contractor engaged to repaint a flat roof that was fenced inadequately by others who were not then engaged in carrying out any building work would not be responsible for the fencing because the painting contractor had not been engaged to undertake that fencing or safety work; nor had anyone else.

47 Justice Mason deals with this issue in the following way:

“Regulation 73, unlike section 6, speaks of a person who carries out building work directly or by his servants or agents. But for the presence of the word ‘directly’ and the alternative reference to ‘servants or agents’ it would be easy to conclude that the Regulation imposed a duty, conformably with section 6, on the person (not being an employee) who executes the relevant building work and on that person alone. The obligation, breach of which is punishable by conviction and penalty, would then be confined to the person who ‘carries out’ the work and has it within his power to comply with the stipulated requirements in so far as they relate to the work. However, some effect must be given to words which indicate that the obligation rests not only on a person who carries out the work directly or by his servants but on one who does so by his agents. The word ‘servants’ excludes independent contractors, but the same cannot be said of the word ‘agents’. Although an independent contractor is not usually described as an agent of the person with whom he contracts, it may be correct in a suitable setting to speak of one to whom the performance of a task is by contract delegated by another as the agent of that other and therefore to refer to a sub-contractor (and a sub-sub-contractor), although he is an independent contractor, as the agent of the other contracting party and where appropriate, the builder.

Such a setting is provided by Regulation 73. The duties which it imposes are in my view prescribed not only for the protection of the servants of the individual contractor but for the protection of all persons engaged in building work in a particular building….

The competing interpretation is that the duty of compliance is cast only upon a person in relation to the work which he carries out by his servants or agents, excluding that work which is undertaken by sub-contractors. Because the opening words of the Regulation limit the class to be protected to those ‘engaged in such building work’, it would exclude sub-contractors and their employees from the class sought to be protected in relation to work done by the builder or head contractor. This is a narrow view of the operation of the Regulation. Despite the need to construe the Regulation strictly because it is primarily penal in character (see Regulation 164), it is a view which in my view should not prevail….

Davey v Skinner

Buckman

48 While the reasons for judgment of Mason J, with respect to his Honour, are overwhelmingly compelling, the judgment of the majority (Barwick CJ, McTiernan and Stephen JJ) is binding.

49 The issue of liability under the Regulations has been the subject of much discussion. It is necessary to deal with those judgments. However, it is sufficient to remark that the circumstances reveal an approach which seeks to reconcile the comments of the majority and the minority in Buckman. In so doing, the circumstances suggest two extremes: at one end the position of the consumer (householder, owner-builder or occupier) who delegates the carrying out of all building work and who is thereby not liable for any non-compliance with the Regulation; at the other extreme is the employer who is vicariously responsible for the conduct of employees who in the course of their employment have failed to comply with the Regulation, thereby rendering the employer responsible for the non-compliance. Between those two extremes there are a range of circumstances which involve varying degrees of delegation and varying degrees of involvement in the carrying out of building work. Liability is determined by the degree to which there has been a retention of involvement in the carrying out of the building work and thereby a retention of responsibility for non-compliance with the Regulation. It seems that in no case has liability been sheeted home to a person not involved in the building and/or construction industry, i.e. a householder or occupier.

50 It is unnecessary to discuss every judgment of the Court of Appeal in which these issues are analysed. It suffices to examine five of them: Maggiotto Building Concepts v Gordon [2001] NSWCA 65; Kolodziejczyk v Grand View [2002] NSWCA 267; Bhambra v Roet [2003] NSWCA 393; Todorovic v Moussa [2005] NSWCA 100; and Lenz v Trustees of the Catholic Church [2005] NSWCA 446.

51 In Maggiotto, the Court of Appeal (Ipp AJA, with whom Meagher and Stein JJA agreed) referred at length to Buckman and to the judgment of Wood CJ at CL in Heatherington v Mirvac [1999] NSWSC 443. Ipp AJA reconciled the reasons for judgment of Barwick CJ and Mason and Jacobs JJ. In a passage which, although oft cited at length, bears repeating once more, Ipp AJA said:

“[20] Mason J explained that the legislation confers no private right upon a sub-contractor against the head contractor ‘when the doing of the work which attracts the performance of the duty has been wholly delegated to the sub-contractor so as to impose the same duty on him and he does the work in breach of the duty in the absence of fault on the part of the builder’. Where, however, the head contractor participates in the faulty construction work, a different result will follow. Thus, Mason J said (at 444):

‘From this material a jury could conclude that the appellant's breach of par. 17 did not solely arise because the respondent was in breach of the same provision; on the contrary a jury might well conclude that the appellants participated by act or approval in reducing the stability of the column without taking any step prescribed by par. 17’.

[21] Jacobs J made the same point. His Honour observed (at 446) that:

‘Where the exposure to accident risk occurs ... as a result of the employee or sub-contractor having failed to perform the necessary acts performance of which has been properly delegated to him, then the exposure to accident risk of that employee or sub-contractor alone is not a breach of the statutory duty ...’

Jacobs J went on to say (at 447):

‘It will generally be found in the case of an employee and it will often be found in the case of a sub-contractor that, though performance of the acts necessary to performance of some statutory duties may properly be delegated to them, the performance of other acts and the compliance with other statutory duties will remain the direct obligation of the employer or the head contractor as the case may be. Whether in any particular case this is so will depend upon the circumstances’.

[22] Earlier, Jacobs J (at 446) dealt with the situation where a person carrying out building work delegates work to a sub-contractor but still has a statutory duty not to expose that sub-contractor to accident risk. His Honour said:

‘When an employee is instructed to do building work in circumstances where the employer has a statutory duty to do acts or things in order to ensure their safety when engaged on the building work there must be more than an implication that they will take any necessary preliminary steps in order to ensure that the work which they are instructed to do is done in conditions where under the statutory duty of the employer is fulfilled. An employee must be particularly directed to do the specific work necessary in order to fulfil the employer's statutory duty and must be provided with all material, assistance and supervision necessary to ensure his ability to comply with the statutory duty. A sub-contractor must be under a particular contractual obligation expressed or necessarily to be implied from the nature of the work to carry out the preliminary work necessary to ensure that when he and those under him are engaged in the building work they will be so engaged in conditions which satisfy the statutory duty’.

[23] In my opinion, the reasons for judgment of Mason and Jacobs JJ are not inconsistent with those of Barwick CJ. They can readily be reconciled.

Hetherington v Mirvac Pty Limited

[25] Mason J held that where a person participates, whether by act or approval, in the building work carried on by the independent contractor to whom the work has been delegated, that person is duty bound by reg 73. There is nothing in this proposition that departs from anything said by Barwick CJ.

[26] Jacobs J pointed out that, where a head contractor instructs some other person to carry out part of the building work, circumstances may arise that require preliminary steps to be taken to ensure that the work which the other person is instructed to do can be done safely. The issue then arises as to the responsibility for those preliminary steps. It must be a question of fact in each case as to whether the other person has been instructed to perform the preliminary steps as well as the work, the subject of the express instructions.

[27] According to Jacobs J, the head contractor will only be regarded as having instructed the other person to perform the preliminary steps if that person was particularly directed to do the specific work ‘necessary in order to fulfil the [head contractor's] statutory duty’. That is to say, according to his Honour, the head contractor will only avoid having a statutory duty in regard to the preliminary steps if the head contractor particularly directs the other person to take those steps. Additionally, the other person ‘must be provided with all material, assistance and supervision necessary’ to ensure compliance with reg 73.

[28] These remarks have to be seen in the context of the statement by Barwick CJ that under the regulations a head contractor owes no duty thereunder in respect of work delegated by it. Jacobs J was merely saying that a court will be slow to hold that instructions to another person to carry out specific work impliedly include instructions to perform the preliminary steps that may be required to make that work safe. His Honour observed that where the express instructions do not cover the preliminary steps, the head contractor may continue to owe statutory duties in regard to the work involved in those steps. Nothing in this approach departs from that of Barwick CJ.

[29] It is not unusual for a head contractor to delegate a specific task to a sub-contractor and to say nothing about the ancillary work or preliminary steps necessary to ensure the safety of those who will be working on the delegated task. In that event, the task of doing the work necessary to complete the ancillary work or preliminary steps may well not be within the work delegated. In such a situation, were the head contractor not to be duty bound to comply with reg 73 in regard to the ancillary work or preliminary steps, there would be a gap in the security net that the regulation is intended to provide. The safety of all involved in the total building enterprise would then not be secured. The strictures expressed by Jacobs J are designed to prevent such a gap from opening. To ensure that the policy of the legislation, as enunciated by Barwick CJ, is fulfilled, the approach of Jacobs J should be adopted.”

52 Dealing with the factual circumstances before the Court, Ipp AJA said:

“[38] Gordon was instructed merely to do the carpentry work at unit 33 and to do so without there being stairs in place. He was not directed to do the specific work necessary to protect himself from the dangers and risks caused by the void. Nor was he supplied with scaffolding or other appropriate material. Additionally, the obligations of co-ordinating and supervising the work remained with Maggiotto, and these obligations had direct relevance to the safety of the work Gordon was instructed to perform. It follows that the performance of Maggiotto's duties under Regulation 73 was not ‘wholly delegated’ to Gordon. Maggiotto still had to do construction work in regard to unit 33. That work involved co-ordinating and supervising the activities to be performed by Gordon and others, and supplying the necessary materials to Gordon.

[39] There can be no doubt but that Maggiotto breached the duties imposed on it by reg 73.”

53 If it is not otherwise clear, Maggiotto had been engaged as a head contractor to construct a number of home units and had engaged Gordon to perform carpentry work to fit out some of the home units. Gordon was an experienced carpenter and was working on a particular unit which required him to work around and above a void. In order to perform that work Gordon climbed along a ledge which was approximately 3 inches wide, climbed up to a workspace and, when he, having completed the work, sought to lower himself back on to the ledge, he slipped, tumbled backwards and fell, injuring himself in the process.

54 As has been made clear in subsequent judgments of the Court of Appeal, with some of which I will shortly deal, the Court of Appeal considers itself bound by the analysis of Ipp AJA in Maggiotto repeated above. A fortiori it is binding on me. Whether or not it is binding, the analysis is, with wholly unfeigned respect, correct. Factually it was a head contractor involved, in significant respects, in the construction of home units, part of which construction was sub-contracted to Gordon. Further, the head contractor was still required to perform work in and around the area in which the sub-contractor was working and the head contractor’s work would have involved compliance with Regulation 73.

55 In Kolodziejczyk, the Court of Appeal, once more, had occasion to deal with the issue of Regulation 73. The factual circumstance was that a “builder” sub-contracted to partners the performance of cladding work in the construction of the second storey of a house. The Court of Appeal (Heydon JA, with whom Ipp and Davies AJJA agreed) recited the findings of fact of the trial judge part of which included a finding that the partners “had the responsibility of carrying out the actual cladding work at the house in their own way and in their own time and were not subject to actual supervision or direction as to when and/or how the work was to be done. The partners used their own tools and ladders and also their vast knowledge and experience in doing work of this type.” The same passage had earlier remarked that the “defendant at all times had the responsibility of arranging for all materials to be used at the house and additional equipment such as scaffolding reasonably requested by the partners being on site.” However, it is clear from the facts before the Court and recited that the responsibility for additional equipment was confined to that requested by the partners who, in turn, were wholly responsible for the manner (including safety precautions) in which the work was performed. Heydon JA, after noting an ambiguity in the finding of fact by the trial judge, remarked:

“[22] … Whatever the correct construction of the first passage, the events relating to problems (a) and (b) are not inconsistent with it because queries by Andrew as to whether the partners could fix a problem and encouragement by Andrew to the partners for them to solve a problem for themselves, do not equate to either supervision or direction.”

56 His Honour then dealt at length with common law negligence, which, for present purposes I do not recite, and with the alleged breach of statutory duty, being a breach of Regulation 73 and 74. At [70], Heydon JA cited a passage from Maggiotto being paragraphs [16] to [29]. His Honour considered himself bound by the ratio in Maggiotto and then distinguished it in the following passage:

Maggiotto's

57 An analysis of the three differences adumbrated by Heydon JA, because of which a different result ensued, confirms the similarity between these present proceedings and the factual circumstances in Maggiotto. I will deal with them shortly.

(i) The building manager, Mr Bruno Bagnara, an employee of the defendant, was coordinating and supervising the activity of the plaintiff. True, this was not a case involving a large number of eclectic trades, but coordination and supervision was in fact required and undertaken.

(ii) Mr Bagnara gave directions as to when, where and in what order the work was to be done and how it was to be done.

58 In Bhambra, supra, the Court of Appeal (Santow JA, with McColl JA and Davies AJA agreed) again recited the reconciliation of the judgments in Buckman by Ipp AJA in Maggiotto and accepted that the judgments in Buckman could be reconciled in the manner suggested in Maggiotto. Nevertheless his Honour came to the view that the defendant was not liable for any breach of Regulation 73. It should be noted that the plaintiff/appellant was refused permission to file a Notice of Contention raising a breach of Regulation 74.

59 In Bhambra the circumstance with which the Court of Appeal was dealing was that the injured party, a carpenter, was engaged to finish off carpentry work in the defendants’ home. The defendants were husband and wife who together owned the home. The carpentry work was work that remained after a previous builder had concluded (either successfully or otherwise) a substantial renovation and reconstruction work. Of the husband and wife, the wife held an owner-builder’s licence and the husband did not. Neither of them had any expertise in building. The carpenter fell from the first floor and injured himself in circumstances where there were no safety rails installed. The cause of the accident however was found by the trial judge to be that the fact that the carpenter had slipped and tripped on a piece of board, being a loose board, which was present as a result of the carpenter’s own negligent workmanship or that of his labourer. The Court held that the husband and wife (even though one of them had an owner-builder licence) had wholly delegated the task, including any safety issues associated with it, to the experienced carpenter and that the defendants were not, because of that delegation, liable for breach of the Regulation.

60 I turn next to the judgment of the Court of Appeal in Todorovic v Moussa, supra. In that case, the Court (Tobias JA, with whom Mason P and Brownie AJA agreed) held that the head contractor was liable for a breach of Regulation 73. Justice Tobias once more cited a passage from Buckman on which the primary Judge relied to determine that the head contractor did not carry out building work.

61 The facts, set out by Tobias JA, were that the defendant, Mr Moussa, was a licensed builder who was developing 3 blocks of land. The plaintiff/appellant was engaged as a ‘gyprocker’ (“gyprock” being a brand name for gypsum plasterboard used for wall or ceiling panels) who had contracted to undertake all board fixing. The plaintiff/appellant descended a ladder which the respondent/defendant had placed within the frame of one of the dwellings. The ladder had been erected to enable access by tradespersons from the ground to the first floor. He was injured when the ladder slipped and the plaintiff/appellant fell some 3 metres onto a concrete floor.

62 Justice Tobias recited a submission put to the Court on the basis of Maggiotto, supra, which the submission contended was indistinguishable from the case then before the Court. His Honour said:

building work

construction work

developer and manager of the project

building work

Buckman

Bhambra v Roet

63 After then reciting paragraphs 20 to 29 from Maggiotto and referring to Kolodziejczyk his Honour summarised and compared the factual circumstances in the judgment of Ipp AJA in Maggiotto and the judgment of Heydon JA in Kolodziejczyk. Justice Tobias said:

Kolodziejczyk v Grandview Pty Limited

Maggiotto

wholly delegated

Maggiotto

Buckman

Maggiotto

Kolodziejczyk

Maggiotto

Kolodziejczyk

Maggiotto

Kolodziejczyk

Maggiotto

totality

‘While the provision of scaffolding for carrying out part of the work is capable of being analysed as a 'preliminary step' or as 'ancillary work' necessary to ensure the safety of the [sub-contractors], the trial judge found that the actual task in the course of which the plaintiff fell did not require the use of scaffolding, but could be carried out on the ladder actually used provided the [sub-contractors] adopted the simple measures of securing it at the top and bottom.’

64 His Honour then referred to Bhambra, supra and to Multiplex Constructions Pty Ltd v Lopez [2004] NSWCA 319. His Honour said:

Multiplex Constructions (NSW) Pty Limited v Lopez

‘affect the application of Regulation 73(2) that there be two entities thereby rendered responsible for compliance with Regulation 73(2), namely head contractor and sub-contractor where each carries out the work in accordance with their respective roles.’”

65 His Honour went on to say:

“[36] In the present case, not only was there no delegation by the respondents to the appellant of the task of providing a safe means of access from the ground to the first floor of the structure upon which the appellant was required to carry out the work that was in fact delegated to him, but also the respondent, Mr Moussa, as head contractor actually carried out that work himself.

building work

construction work’

Bhambra

Maggiotto

[39] Accordingly, in my opinion the primary judge erred when he held that the respondents were not relevantly carrying out building work because the provision of the ladder was not the gyprocking work which only the appellant, and not the respondent, was actually carrying out. What his Honour, with respect, has overlooked is that the erection of the ladder for the purpose of providing a means of access for tradesmen to enable them to perform their delegated tasks was itself building work in respect of which the statutory duty referred to in Regulation 73 applied. It follows that the appellant was entitled to succeed in the proceedings against the respondents on the basis of breach of statutory duty.”

66 I return to the expression of opinion in [35], infra, that the issues of whether construction work is being “carried out” and the definition of “building work” are interwoven. In the above passage, the analysis of Tobias JA makes clear how the two issues are interrelated. The issue of whether there has been a total delegation of the work is referred to in Buckman by Jacobs J as “a particular contractual obligation expressed or necessarily to be implied from the nature of the work to carry out the preliminary work necessary to ensure that when he and those under him are engaged in the building work they will be so engaged in conditions which satisfy the statutory duty” (at 446). Where building work is left to be done and it is relevant to the issues of safety to which the regulation goes (in Todorovic the erection of the ladder to gain access to the upper floors), then the work in question has not been “wholly delegated”. Another means of analysing the issue is that the work not delegated, e.g. the work undertaken in Todorovic by the head contractor, is itself within the definition of “building work” and “liability” for a breach of Regulation 73 arises.

67 In Bhambra, no work was done by the husband and wife. In Kolodziejczyk the only ‘work’ was the delivery of materials requested. In each of the other cases (Maggiotto, Todorovic and Lenz) work was done which was relevant building work. In turn, this meant that all of the building work in question had not been delegated.

68 I have not as yet dealt in detail with the judgment of the Court of Appeal in Lenz v Trustees of the Catholic Church, supra. Given the above summary and the reference to earlier cases it is unnecessary to repeat at length that which fell from the Court of Appeal (Mason P, with whom Santow and Basten JJA agreed). Nevertheless it is relevant to deal with the summary by Mason P of the cases and the principles adopted by them. His Honour the President said:

Buckman

Almeida

Buckman

Almeida

Maggiotto

‘intimately connected’

‘dewatering’

Multiplex

Buckman

Maggiotto

Zahner v Andreas Pty Ltd

Todorovic

F & D Normoyle

‘by act or approval’

Buckman

Maggiotto

Kolodziejczyk

Buckman

Maggiotto

Kolodziejczyk

Todorovic

Castellan v Electric Power Transmission Pty Ltd

Bhambra

‘the person in charge of the construction work’

‘the person in charge of the construction work’.

‘provide’

69 For the reasons set out above, particularly at paragraphs [56] and [57], infra, and the clear analogy with the factual circumstance in Todorovic, it is clear that the defendant did not wholly delegate the building work in question to the plaintiff; it directed the plaintiff as to the time of the performance of the work; it provided at its own initiative the plaintiff’s means of access to the work space; and it directed the plaintiff to descend to the roof and take the measurements, in which circumstance the defendant itself engaged in building work through its employee Mr Bagnara.

70 The defendant submits that a distinction ought to be drawn between a contractor (or head contractor) who is engaged in the building industry and an occupier, which, it says, better describes the defendant’s status.

71 There are answers to this submission: first, the Act and Regulations make no such distinction; secondly, the fact that the defendant is the occupier of the premises does not, in the circumstances of this case, signify that the defendant is not in the building industry and in the same position as a “usual” head contractor.

72 The mere fact that the defendant is predominately providing aged care residential facilities does not mean that it cannot also be engaged in the building industry, or in building activities. The employment of one or more persons whose duties are confined to building maintenance, the organisation of contractors, their coordination and direction means that, at least in relation to the work of Mr Bagnara (and/or any other such person) the defendant is engaged in the building industry: see, by analogy, R v Central Reference Board; ex parte Theiss (1948) 77 CLR 123 and R v Isaac; ex parte TWU (1985) 159 CLR 323.

73 The defendant is in a different position to an occupier whose organisational structure did not involve the employment of persons full-time on organising construction work (as defined).

74 There is, however, some force in the defendant’s submission in this regard and it relates to the approach suggested by Jacobs J in Buckman. While, in the case of a building company, one may well be less likely to infer a full delegation of all preliminary steps involving safety, a court may be less likely to infer a retention of responsibility (or involvement in the building work) in the case of the contractual arrangement involving a householder or occupier.

75 This will not necessarily exempt all householders, but it would exempt the vast majority. As for occupiers who are generally involved in building work, it will be a matter, as it always is, for an examination of their role in the building work being undertaken.

76 I make it clear that the reference in this analysis to the term “building industry” is not intended to suggest a different test or different wording than “building work”. It is used to denote activity beyond the particular work in question which would otherwise be “building work” (as defined) undertaken personally or by servants or agents.

77 There is one further complication, in relation to the operation of Regulations 73 and 74. Earlier in this judgment I referred to the question of what is building work. In particular I did so in an analysis of the judgment of Tobias JA in Todorovi. That analysis dealt with the delineation between different aspects of what was undeniably construction work. In this case, the defendant argues that the measurement of the roof for the purpose of a quotation for painting work is not building work and therefore not construction work.

78 As I understand the argument it is submitted by the defendant that the act of preparing a quote, or measuring for the purpose of preparing a quote [or on direction simply for the purpose of providing the measurements], does not constitute building work within the meaning of section 3 of the Construction Safety Act 1912 (NSW) and therefore within the meaning of Regulations 73 and 74 made pursuant thereto. Therefore, no liability arises and, for that matter, the Regulations do not apply to the work in question.

79 To some extent the question is alluded to in the statement already cited in Todorovic. The placing of a ladder adjacent to a building (or a floor of a building) for the purposes of ascending that ladder may or may not be building work. If a householder (or a contractor engaged by the householder) places a ladder adjacent to a house for the purpose, for example, of removing a tennis ball from a gutter or a cat from a roof, it is not building work and, therefore, not construction work. If on the other hand the same ladder is placed by the same persons for the purpose of repairing the roof, the placing of the ladder is construction work.

80 To take another example, the sweeping of a front yard of a house would not, generally, be construction work for the purposes of either the Act or the Regulations. However, if the yard is being swept by a builder’s labourer and the house is in the process of being constructed, it almost certainly would be construction work.

81 The definition of “building work” in section 3 of the Act must be understood bearing in mind the purpose for which the legislation has been promulgated: Project Blue Sky v ABA (1998) 194 CLR 355 at [69], [70] and [78]. Thus, even though a strict reading of the definition of building work might include a cleaning contractor engaged for the purpose of cleaning a courthouse, it being “work in … cleaning … that … is done in relation to a building … at or adjacent to the site thereof,” one would not generally accept, except in the case of the cleaning being done in connection with the erection or alteration of the courthouse, that the work was building work or was intended to be covered by the Construction Safety Act 1912 (NSW).

82 Likewise, measuring a roof, or any other part of a building, may not, without more, be included in the definition of building work. However, the task of construing an Act is not confined to giving each word a meaning. Otherwise one would use a dictionary not a judge. Where, as here, the measurement is done for the purpose of repairing or painting the building or structure, or the roof of the building or structure, it is building work. This is so whether the purpose has been effected or whether it is certain.

83 Thus, in the example used earlier, if a contractor places a ladder adjacent to a house and secures it to the house for the purpose of repairing a roof, or painting a roof, and a person falls injuring themselves in circumstances which otherwise would be covered by a breach of Regulation 73 or 74, the Regulation applies. The Regulation applies notwithstanding that the owner/occupier may thereafter not proceed with the repair and/or painting. This is because the ladder is fixed for the purpose of repairing and/or painting and therefore the fixing of the ladder is “work in” said repairing and/or painting.

84 Likewise, while a measurement unrelated to any other building work may not itself be building work, in the circumstances of this case, where the defendant had decided to repair and/or paint the roof of the building and directed the plaintiff to measure the roof for that purpose, the measurement is work in repairing and/or painting the roof.

85 The defendant submits that mere preparatory work involving inspections, travelling to or on to the site and the giving of quotes “quite clearly does not fall within the definition of building work”. This is only partly so. Travelling to the site cannot be building work because the work must be done at the site of the building. Were it otherwise the manufacture to specific orders of windows for a particular building would, even when performed in a factory, be building work and covered by the Regulations.

86 However, it is impossible (or extremely difficult and inefficient) to perform any building work without measuring for the purpose of determining how much material is required. Measuring a roof to determine how much paint is required (and how many days will be required to paint it) is a necessary and essential part of painting and is properly within the term “building work” and therefore within the term “construction work”.

87 Contrary to the submission of the defendant, the definition of “building work” is deliberately broad and is not confined to functions that “alter the substance of the subject of the work”. Building work includes cleaning for example. The resolution of a question as to whether any particular work is “building work” is resolved by determining whether the work is “an activity so ‘intimately connected’ with the construction activity … as to constitute part of it” (Lenz at [62] citing Multiplex).

88 The proper approach to the construction of the Act in this regard would not support the exclusion of this work. The definition of “building work” has, as already stated, not been the subject of extensive analysis. The definition has interesting aspects: first, the use of the gerundival form in describing the aspects of “building work” included e.g. constructing etc; secondly, the definition, by utilising the word “means”, is exclusive in effect (cf the definition of “owner” and see R v Gray; ex parte Marsh (1985) 157 CLR 351 at 364-365); thirdly, the adumbrated aspects of “building work” are extremely broad and some at least are overlapping; fourthly, the definition does not confine the work to a “building” but includes a “structure”; fifthly, the work is limited to such work done at or adjacent to the site but includes any of the adumbrated aspects “in relation to” a building; lastly, and perhaps most importantly, in dealing with this aspect of the proceedings, “building work” is not defined as “constructing … etc”, but as “work in constructing … etc”.

[66] On reviewing the CT scan, Dr Barnsley felt it only revealed osteoarthritic change with no evidence of loose bodies. He suggested to the plaintiff that he might consider job re-training to avoid unduly loading the elbow joint, and to avoid hastening any deterioration. No follow-up appointment appears to have been made after this consultation.

[67] The plaintiff is next reviewed by Dr Barnsley on 4 January 2005, but this appears to be essentially a medico-legal examination for the purposes of preparing his report to the plaintiff's solicitors dated 7 January 2005. When reviewed on this occasion, the plaintiff reported that his elbow was getting worse, with rapid deterioration a few months previously. He told Dr Barnsley that his arm can now give way and hurt with radiation of pain along the proximal ulnar. However, he had not noticed any obvious swelling of the elbow. It was currently hurting a lot more than the wrist. The pain was said to be sharp, tended to settle over a few minutes, and was not associated with any locking or jamming. The plaintiff did notice some clicking and the arm could stiffen. Numbness of tingling in the hand since the original repair of his median nerve was denied.

[68] It should be noted the plaintiff did not give any evidence about the arm giving way.

[69] The plaintiff told Dr Barnsley he was still working as a painter 6 hours a day. Most of his work was done with the left dominant hand, but he needed the right arm both to support paint pots and also to help with the roller. He was apparently physically painting for about 4 hours a day.

[70] On this occasion the plaintiff complained for the first time to Dr Barnsley about problems with neck pain. He gave a history of this developing within twelve months of the accident but suggested the analgesics he was taking for his arm in that first twelve month period could have masked any neck pain. In addition to neck pain, the plaintiff also complained of some peri-scapular pain at the lower pole of the right scapular. He said he initially had this following the MVA in 1994 but was treated with local injection and exercise ‘with excellent resolution’. This is consistent with the history given to Dr Scougall, but inconsistent with the history apparently given to the Neuropsychologists, Rock/Murray.

[71] The plaintiff also told Dr Barnsley that he initially sought treatment for the neck and shoulder pain from a chiropractor, but when the meningioma was diagnosed he stopped that treatment. As stated above, the plaintiff first saw David Harris, Chiropractor, on 6 March 2002, some three years after the subject accident. Therefore, there remains a substantial gap between the fall and apparent onset of these problems.

[74] Dr Barnsley concluded that the plaintiff had evidence of progressively worsening pain in the right elbow, with the development of some soft tissue swelling indicating active, and therefore progressive, osteoarthritis. He was pleased to note, however, that the plaintiff did not have any overt forearm muscle wasting, indicating that he had been working to try and mitigate his problems. His opinion about the neck problem is as follows:

His neck pain occurs principally with neck extension. I am unsure of its exact relationship to the injury that he sustained since clearly he has had a job that has required significant neck extension to paint roofs and also he has a preceding motor vehicle accident. However, the temporal sequence would suggest that it may be related to the most recent fall and I am sure that he would have sustained some degree of acceleration, deceleration injury to his neck with the fall. It also seems reasonable to suggest that his symptoms from the neck were masked by his need for significant analgesia in the first year whilst his right arm was being treated. At this stage I believe that the recommendation for regular exercise is the correct one and I would not add anything to this.

[75] It is submitted that the basis of Dr Barnsley's opinion about the temporal relationship and nature of the injury suffered have not been proven, and, therefore, the Court should reject the plaintiff’s claim in respect of the neck.

[76] In terms of prognosis, Dr Barnsley opined as follows:

The natural history of osteoarthritis is for relentless progression. I think that Mr Takacs will have worsening and ongoing pain, stiffness and loss of function in his right wrist and elbow as a result of the arthritic change which is already apparent after only three years. His scapulo-thoracic dysfunction should improve with physiotherapy. His neck pain will vary but would be unlikely to significantly worsen or improve for the foreseeable future. It may by helped by avoiding painting ceilings.

[77] Dr Barnsley estimated a 25% loss of function of the right arm at or above the elbow, constituting a whole person impairment of 20%. In addition, he thought the plaintiff had a 10% loss of the effective use of the neck, constituting a further 4% whole person impairment. He opined that the plaintiff had suffered a permanent loss of earning capacity as he has lost significant use of his right hand and wrist, such disability to progress over time.

[78] On 22 November 2004, the plaintiff was examined by Dr John Graham, Neurologist, on referral from Dr Sidhu. At that stage, the plaintiff had no numbness or tingling down the right arm, and no actual weakness. He was no longer taking any tablets for the pain and was occasionally taking alcohol.

[79] On examination by Dr Graham, neck movements were satisfactory. Dr Graham felt there were no hard signs of nerve root or cord involvement, but it was likely the plaintiff had some degenerative changes in the cervical region, and perhaps the upper thoracic spine as well. He thought this could also explain the right scapula pain.

[80] Dr Graham reviewed the plaintiff on 16 December 2004 following the MRI scan of the cervical spine. The MRI showed no nerve root or cord lesion, but mild central disc osteophytes were seen at C4/5 and C6/7. Dr Graham thought they may well respond to conservative management with isometric neck exercises and the plaintiff was advised to do them on a daily basis. He opined that generally the symptoms settled down over a few months and the plaintiff may be a good deal better in about 3 months time. Should he not improve or become worse, he will need to find an alternative trade to painting. There is no further report from Dr Graham.

[81] It appears the plaintiff's neck and scapula pain have not improved. If anything, they appear to have worsened. However, the cause of the scapula pain remains uncertain, and, it is submitted, on the balance of probabilities neither is related to the subject accident.

[82] Throughout this period the plaintiff was also reviewed by Dr Jeffrey Hughes, Orthopaedic Shoulder & Elbow Surgeon. He most recently saw the plaintiff on 5 December 2005 following a CT scan of the elbow. The CT scan apparently showed significant degenerative changes as well as cartliaginius loose body. In addition there was quite reduced joint space between the radiocapitellar joint. Dr Hughes felt the plaintiff has a combination of post-traumatic arthrosis and loose body formation. He would derive some benefit from having the elbow arthroscoped and the loose bodies removed. It is likely that in the long term he will still need to modify his activities in relation to work and try and avoid any heavy lifting or use of impact tools. He considered it unnecessary to have the surgery done urgently but if he develops more acute locking and/or neurological symptoms then consideration may be given to bringing him forward. He has been placed on the waiting list RNSH.

[83] In his medico-legal report dated 16 January 2006 Dr Hughes states that the repeat arthroscopy may provide relief of symptoms. An elbow arthroplasty would impose a number of significant conditions, but it should be noted that these do not appear to be much different to those under which the plaintiff currently works. Dr Hughes has been unable to explain why the plaintiff has scapula pain, and he has not been able to identify any specific abnormality.

[84] The plaintiff has also seen Dr Christine Harris, Consultant Physician in Occupational Medicine, on several occasions for medico-legal purposes. On his first visit on 12 January 2004, Dr Harris noted no evidence of muscle spasm or asymmetry, and a full range of neck movement. Findings in respect of the arm and wrist were similar to other examiners. Dr Harris felt at the time that the plaintiff was already exhibiting symptoms consistent with arthritic changes in the wrist, and that this would progress with time. His restrictions in working capacity were noted, and these were said to increase with time. The plaintiff would eventually require an arthrodesis of the wrist.

[85] In a further report dated 13 February 2004, Dr Harris opined that the plaintiff will ultimately need to cease work as a painter. She thought a ‘generous estimate’ of when this would occur is three years. Or even less! Computer training was considered a necessity.

[86] It is submitted Dr Harris' ‘generous estimate’ is simply untenable in the light of all the other evidence.

● Painful right elbow and difficulty with lifting heavy objects.

● Spasmodic pain over the right scapular region with lifting.

[88] The plaintiff told Dr Harris that he continues to work as a painting contractor, self employed, mostly approximately 6 hours per day with good and bad days. He employs one other painter. His only medication is Glucosamine and he uses a Feldene Gel. He had just commenced a course of physiotherapy that month because of ongoing neck and arm problems. He consumes one or two drinks of wine per day, but at times it is as much as a bottle. He tends to use alcohol as a sedative when he is unable to sleep. This appears to be inconsistent with the plaintiff's evidence. He complained of numbness/tingling in the right arm over the past 6 months. He said he is able to drive an automatic car and does this one-handed. He drives approximately 1 hour to and from work.

[89] The plaintiff also complained that his neck is stiff and painful with symptoms being virtually constant, and he feels the symptoms have increased if anything with time. Neck pain is associated with discomfort/tightness over the right scapular region, and aggravated by turning his head to the right and extending his head backwards. He obtained some relief from massage. His sleep is restless. The right elbow was painful and stiff. The right wrist is painful at times but this is not as severe as the elbow. The right wrist symptoms were said to be intermittent.

[90] On examination, there was once again no evidence of muscle spasm or asymmetry in the neck. There was no real tenderness of cervical spine but some ‘tightness’ over the paraspinal musculature. Neck movement to the right was decreased by half. There was tenderness over the upper boarder of the right trapezius. Reflexes in the upper limbs were present and symmetrical. There did not appear to be any neurological involvement of the upper limbs. The right shoulder did not show any muscle wasting. There was no tenderness and he had a full range of shoulder movement.

[91] Dr Harris once again opined that the plaintiff certainly runs the risk of premature osteoarthritic changes in the right elbow and right wrist joints, with increasing loss of mobility. He also runs the real risk of arthrodesis or fusion of the right wrist in time. The pain and loss of mobility in the cervical spine is mostly postural in origin with underlying early degenerative changes shown on the MRl of 2.12.04. Prognosis was guarded. According to Dr Harris, he is managing to work using his left side, but is now having real problems with pain over the left scapular region, which she felt is due to postural factors as a result of protecting his right arm. It should be noted the plaintiff did not give any evidence consistent with this last statement by Dr Harris.

[92] In a final report dated 30 January 2006, Dr Harris opined that the plaintiff’s working life, in terms of ‘working as a full-time painter carrying out all his previous activities’ would be no longer that 5 or 10 years, but stated ‘this is a very general assessment’.”

132 There is one very minor issue on the question of injuries, which were otherwise relatively uncontroversial as between the parties, relating to the injury to the plaintiff’s nose. The controversy arises from a description of the plaintiff’s injuries given by the plaintiff in the witness box. There is no doubt from my observation, as recorded at page 30 of the transcript (and during discussion thereafter), that the plaintiff indicated that his nose has been injured. He indicated injuries to his temple, his right eye, his nose and across his cheekbone in relation to the external injuries on his face. The ambulance notes do not record an injury to the nose. In the scheme of injuries of concern to them, the nose injury would not have been significant: see Davis v Wagga [2004] NSWCA 34 at [35]; Kappadoukas v Fransepp [2006] NSWCA 366 at [56], [57]. I conclude that the nose was injured and the treatment of his nose is an expense which can be included in the treatment expenses associated with the injuries from this incident.

133 There is little doubt that the plaintiff suffered significant pain and continues to suffer significant pain. At one stage this led him to drink alcohol to an unacceptable degree in order to overcome the pain and allow him to sleep. This was not an alcohol dependence. He has, partly because of his resilience, treated that consequential issue and no longer self treats the pain by the use of alcohol.

134 As described by the plaintiff in submissions, the loss of the use of his upper limb to the extent that the plaintiff has, represents a most significant disability to a relatively young man. “It affects all of his life’s activities, at work, socially and recreationally. He has been unable to return to his favourite recreation of golf and has been affected in his ability to carry out domestic activities at home.” I do not consider the plaintiff has ongoing disabilities, other than of a minor kind associated with initial aural comprehension, resulting from permanent brain injury.

135 I have remarked that the plaintiff has been described as “resilient”. It is a description which I accept. There are some examples that ought to be repeated for an understanding of how it has affected the plaintiff and how it affects the assessment of damage.

136 Prior to the injury, the plaintiff performed significant domestic functions around the house and was working as a painter in his own business (a partnership with his wife). He did all of the painting work for the business. On all occasions prior to the injury he did the work himself. Since the injury that has not been possible. Nevertheless, notwithstanding an incapacity with his right hand, he continues to work and he continues to paint. He is unable to do finer work because it necessitates both hands. He is unable to work from a ladder because he is unable to hold on. He is unable to use a large roller because it requires both hands. Nevertheless, the plaintiff works, almost fulltime. He does more than should be expected given the nature of his injuries and he supervises other painters whom he now employs.

137 Around the house, there is a similar story. He continues to mow the lawn. This he does by pushing the mower with his left hand and his hip. He continues to cook, using only his left hand. There are of course significant areas of domestic activity which he had previously performed and which he is now unable to perform or, if he does perform them (including the foregoing) he necessarily performs them at a slower rate.

138 I have already stated in the earlier part of this judgment that the plaintiff (and his wife) understated the injuries and their effect. There can be little doubt of that. The determination and confidence of the plaintiff led him to understate, in his own opinion, his need for future assistance. The need for assistance will become an increasing problem as the arthritic effects of the injury to his limbs become more pronounced in his older age.

139 His treating doctors are far less confident. I accept their prognosis.

140 Further, even in relation to past domestic assistance, the plaintiff and his wife have clearly understated the level of assistance given. Nevertheless, that is the evidence before the Court. And in some respects that is appropriate. Given that the plaintiff will receive past economic loss, the fact that he takes three or four times as long to do domestic chores is, at least in one sense, already compensated. Whether compensated or otherwise, the Court must deal with the evidence that is before it.

141 I accept the submission of the plaintiff that the partnership earnings are the appropriate measure for the purpose of calculating economic loss given that he was overwhelmingly the person who generated and earnt the income for the partnership. While his wife did administrative tasks, the plaintiff gleaned the business through his contacts and his reputation and he performed all of the painting work for which bills were rendered and from which the total earnings of the partnership were received: Husher v Husher (1999) 197 CLR 138.

142 I also accept that it will not be long before the amount of painting work now undertaken by the plaintiff will significantly diminish and ultimately disappear because of the disabilities associated with his injuries.

143 The plaintiff gave evidence of his view (not uncommon amongst persons in their 30s) that he would have, in the ordinary course, sought to retire or ease-up on work at an earlier age. Nevertheless I accept that it is appropriate to award damages for the diminution of earning capacity until the age of 65. I also, as the foregoing makes clear, award compensation for domestic assistance for all that is claimed (and underestimated) for the past and that which is claimed for the future and calculated on the basis of the opinion of the occupational therapist. That opinion is not the subject of challenge.

144 That estimate is that the present requirements of the plaintiff are approximately 5 hours per week increasing in 10 years time to a level of 7 hours per week and after a further 10 years increasing to 10 hours per week. I accept that estimate and that opinion but allow a discounted calculation in accordance with the plaintiff’s figures.

145 The general damages range is within a small compass and given the nature of the injuries suffered and the matters to which I have already alluded I award the amount of $175,000 in general damages.

146 The expenses for past treatment has been agreed at $18,000 and I will allow that amount. The aspects of future treatment are not substantially in dispute and I allow the amount of $35,000 for future treatment. I make clear in relation to treatment that I have included treatment for damage to the nose which I accept was caused by the injury in question. There was at some stage an issue as to whether or not the nose damage was included (see transcript page 30 and page 70). I made it clear at [131], infra, that I accepted that the plaintiff had indicated by hand movements a big lump on his forehead, injury to his eye, the right side to his face, including the temple, nose and across the cheekbone. I accepted that description, and I include treatment for the damage to the nose in the cost of the treatment in question.

147 In relation to the loss of past earning capacity, allowance must be made for the time period during which the plaintiff would have otherwise not worked because of a meningioma which, on the evidence, was not related to the injury. The accountants qualified by the plaintiff assess the past loss for the period from 4 May 1999 until 31 December 2004 (290 weeks) and deduct from that a period of 9 months (from July 2002 until April 2003) for the period of illness on account of the meningioma. The calculation made by Furzer Crestani in that regard was an amount of $80,241. The 9 month period is calculated by taking the period as being from the date of the invoice for work last made in 2002 until the first invoice for work done by him after the operation on 14 February 2003. The calculation, as already mentioned, is $80,241. With that calculation Walter Turnbull, the accountants qualified by the defendant, agree. Indeed, on the basis that the assumptions made by Furzer Crestani prove to be correct (which largely they have) Walter Turnbull accepts the methodology and projected income calculations by Furzer Crestani. The past loss of earning capacity must also include a figure from 31 December 2004 until 5 March 2007, a period of 114 weeks based upon a net loss of $335.50 being a further amount of $38,247. This would bring the total amount for the past loss of earning capacity to $118,488.

148 The interest on the past loss of earning capacity is calculated at 5 percent for 7 years and 10 months on the $118,488 which brings in an amount of $46,407 for that interest.

149 As to future economic loss there are a number of matters with which I will briefly deal. I do not award an amount relating to the loss of future superannuation benefit. I do this because past income (and the datum point for the calculation of losses) was income as a self-employed person from which superannuation benefits would have been paid. To include the future loss of superannuation benefits as well as the loss of earning capacity would be to double count that factor and I do not allow it as part of the damages in these proceedings.

150 The difference between the plaintiff’s calculation and claim and that of the defendant’s is the assumption by the defendant that the plaintiff will continue working as a self-employed painter and earning income not dissimilar to that which was earnt in the later period after the accident or calculated on that basis. The prognosis from medical practitioners, however, is, unfortunately, not that optimistic. There is some difficulty with this estimation as the noted determination and resilience of the plaintiff may result in a capacity to defy the medical prognosis. However, some of that confidence will be dispelled by the reality of age and the cumulative effect of the injuries on his body.

151 I accept that his working life as a painter will cease from approximately 10 years after the accident and therefore accept that from on or about 1 July 2009 any loss of income will have to be assessed on the basis of wages earnt rather than income from his continuing business activities. However I take account of the resilience and determination by assuming the scenario based upon a higher net wage from that period than might otherwise have been appropriate. That results in an assumption that the net wage (i.e. after tax) would be $500.00 per week for the period commencing 1 July 2009 and those net wages (the equivalent of $622.74 gross per week, i.e. including tax) are deducted from what otherwise would be the continuing income earnt from the business in order to calculate the loss.

152 Both sets of accountants have assumed an income from the business between 1 July 2004 and 30 July 2009 based upon an adjusted net business income of $34,824. I allow 15 percent for the vicissitudes of life. The calculations make allowance for the reasonable estimate of efforts of the plaintiff’s spouse as a deduction from the damages. The calculations assume that the plaintiff will retire at the age of 50. That early retirement age is a necessary assumption, which is proven on the evidence, based upon the disabilities which will worsen over the years. I calculate the future loss of earnings from 1 March 2007 and calculate the figure at $353,945.

153 The defendant submits that the plaintiff, in such a calculation, takes the benefit of the capacity to work as well as the additional capacity because two (perhaps the equivalent of one and a half) persons are painting and carrying out the work and that, therefore, a reduction in the amount needs to be made. The submission is not absolutely correct. On one view, the plaintiff had the capacity prior to the injury of employing a person and doing painting jobs more quickly and/or larger painting jobs. He had chosen not to organise himself in that way. There may be a number of reasons for that. First, he may have been unable to obtain the additional work. Secondly, he may not have been able, even with the greater capacity, to do the larger jobs of which the defendant speaks. Thirdly, the employment of an additional person on income producing activities does not necessarily result in greater profits; it only results in greater profits if there is a market for the additional activity and it is possible to take advantage of it. Fourthly, the plaintiff had chosen a lifestyle which did not include the stress of a role as an employer, which, as this case shows, involves managerial responsibilities, insurance and safety issues and responsibilities that some would prefer not to have. Notwithstanding the foregoing, there is some benefit obtained by the method of calculation of the damage which overstates the loss in terms of future income. For that reason I reduce the amount awarded by approximately one-fifth or 20%, bringing the amount I award to $285,964.

154 I allow the Griffiths v Kerkemeyer as claimed (albeit understated) being past Griffiths v Kerkemeyer at $28,600. For present purposes past Griffiths v Kerkemeyer is calculated to 17 May 2001. I allow future Griffiths v Kerkemeyer, to the full amount claimed on the basis already stated, namely a deferral for 10 years on the 3 percent totals. I allow interest on the past Griffiths v Kerkemeyer at a commercial rate (say 9 percent) which calculates as $12,870.

155 As earlier stated I accept the unchallenged evidence of Ms Kennedy-Gould, the occupational therapist qualified by the plaintiff and the calculation based upon that opinion which is slightly more than that which has been calculated by the plaintiff. Ms Kennedy-Gould defers any increase in domestic assistance for 10 years at which time it would be 7 hours per week and, a further 10 years thereafter, it would increase to 10 hours per week. The calculation by the plaintiff is for 7 hours per week deferred to 10 years remaining static thereafter. Given the necessary level of uncertainty associated with estimates of domestic assistance for 20 years hence, I accept that the calculation proposed by the plaintiff is an appropriate one. I allow $193,070 for future Griffiths v Kerkemeyer.

Conclusion

156 As made clear, I have determined that the defendant is responsible for the requirements of Regulation 73 and Regulation 74 of the Regulations made pursuant to the Construction Safety Act 1912 (NSW). As a result of that finding, contributory negligence is not applicable.

157 I have, notwithstanding the above determination, found that the defendant is liable in the common law for negligence. If damages were awarded for the common law claim, I would reduce that damage by 20 percent as a consequence of the contributory negligence for which the plaintiff is responsible.

158 I make the following orders:

(i) judgment for the plaintiff in an amount of $913,390;

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Citations

Takacs v The Uniting Church [2007] NSWSC 175

Most Recent Citation

The Uniting Church v Takacs [2008] NSWCA 141

Cases Citing This Decision

1

The Uniting Church v Takacs [2008] NSWCA 141

Cases Cited

25

Statutory Material Cited

2

H C Buckman & Son Pty Ltd v Flanagan [1974] HCA 30

Maggiotto Building Concepts Pty Ltd v Gordon [2001] NSWCA 65

CITATION:	Takacs v The Uniting Church [2007] NSWSC 175
HEARING DATE(S):	20/03/06, 21/03/06, 23/03/06
JUDGMENT DATE :	6 March 2007
JURISDICTION:	Supreme Court
JUDGMENT OF:	Rothman J
DECISION:	(i) judgment for the plaintiff in an amount of $913,390;; (ii) the defendant shall pay the plaintiff’s costs of and incidental to the proceedings, as agreed or assessed.
CATCHWORDS:	PERSONAL INJURY – workplace injury – breach of statutory duty – failure to fence – failure to provide safety harness – painting contractor engaged to measure and quote – where owner/occupier employs person to coordinate building work who undertakes actual supervision then employer liable for injury to contractor – Construction Safety Act 1912 – meaning of “carries out” – meaning of “work in” as “work related to” or “work intimately connected with” - NEGLIGENCE – common law – occupier’s liability - CONTRIBUTORY NEGLIGENCE – relative causation - DAMAGES – no allowance for superannuation benefits where business income basis of economic loss
LEGISLATION CITED:	Construction Safety Act 1912 (NSW) (Act No. 38) Construction Safety Regulations 1950 (NSW)
CASES CITED:	Australian Safeway Stores Pty Limited v Zaluzna (1987) 162 CLR 479 Bankstown Foundry v Braistina (1986) 160 CLR 301 Bhambra v Roet [2003] NSWCA 393 Buckman v Flanagan (1974) 133 CLR 422 Davey v Skinner [1961] NSWR 216 Davis v Wagga [2004] NSWCA 34 Ellavale Engineering v Pilgrim [2005] NSWCA 272 Griffiths v Kerkemeyer (1977) 139 CLR 161 Heatherington v Mirvac [1999] NSWSC 443 Hollis v Vabu (2001) 207 CLR 21 Husher v Husher (1999) 197 CLR 138 Kappadoukas v Fransepp [2006] NSWCA 366 Kolodziejczyk v Grand View [2002] NSWCA 267 Lenz v Trustees of the Catholic Church [2005] NSWCA 446 Maggiotto Building Concepts v Gordon [2001] NSWCA 65 Multiplex Constructions Pty Ltd v Lopez [2004] NSWCA 319 Papatonakis v ATC (1985) 156 CLR 7 Podrebersek v AI&S (1985) 59 ALJR 492 Project Blue Sky v ABA (1998) 194 CLR 355 R v Central Reference Board; ex parte Theiss (1948) 77 CLR 123 R v Gray; ex parte Marsh (1985) 157 CLR 351 R v Isaac; ex parte TWU (1985) 159 CLR 323 R v Neil; ex parte Cinema International (1976) 134 CLR 27 Thompson v Woolworths (2005) 221 CLR 234 Todorovic v Moussa [2005] NSWCA 100
PARTIES:	P: John Ernest Takacs D: The Uniting Church in Australia Property Trust (NSW) t/as Northaven Retirement Village
FILE NUMBER(S):	SC 020224/2005
COUNSEL:	P: Mr P.G. Mahony SC, Mr R.E. Quickenden D: Mr A.C. Bridge SC, Mr R.G. Gambi
SOLICITORS:	P: Mr J.H.G. Finney (CBD Law Solicitors & Attorneys) D: Mr C.B. Brierley (Ebsworth & Ebsworth Lawyers)