Thompson v J-Corp Pty Ltd
[2018] WADC 164
•30 NOVEMBER 2018
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: THOMPSON -v- J-CORP PTY LTD [2018] WADC 164
CORAM: BOWDEN DCJ
HEARD: 1-5 & 8 OCTOBER 2016
DELIVERED : 30 NOVEMBER 2018
FILE NO/S: CIV 3080 of 2016
BETWEEN: ALEX PAUL THOMPSON
Plaintiff
AND
J-CORP PTY LTD
Defendant
Catchwords:
Negligence - Occupiers' liability - Duty of care of principal contract organising activity
Legislation:
Civil Liability Act 2002 (WA)
Occupiers' Liability Act 1985 (WA)
Result:
Judgment for the plaintiff
Representation:
Counsel:
| Plaintiff | : | Mr DM Bruns |
| Defendant | : | Mr GR Hancy |
Solicitors:
| Plaintiff | : | Stephen Browne Lawyers |
| Defendant | : | Greenland Legal Pty Ltd |
Case(s) referred to in decision(s):
Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem [2009] HCA 48
Anyco Pty Ltd v Kleeman [2008] WASCA 30; (2008) Aust Torts Reports 81-933
Apostolic Church Australia Limited v Dixon [2018] WASCA 146
Bennett v Minister of Community Welfare [1992] HCA 27; (1992) 176 CLR 408
Bowen v Tutte (1990) Aust Torts Rep 81-043
Bryant v Fawdon Pty Ltd (1993) Aust Tort Rep 81–204; (Unreported, WASCA, Library No 930037, 22 January 1993)
CGU Insurance Limited v Coote (by his Next Friend Stephen Desmond Coote) [2018] WASCA 117
Chelini v Northern Territory Port Authority (1976) 12 ALR 519
Czatyrko v Edith Cowan University [2005] HCA 14; (2005) 79 ALJR 839
Department of Housing and Works v Smith (No 2) [2010] WASCA 25; (2010) 41 WAR 217
Dovuro Pty Limited v Wilkins (2003) 215 CLR 317
Jones v Dunkel (1959) 101 CLR 298
Joslyn v Berryman (2003) 214 CLR 552
Leighton Contractors Pty Ltd v Fox [2009] HCA 35; (2009) 240 CLR 1
Lyle v Soc [2009] WASCA 3
Lysaght (Australia) Limited [1975] HCA 9; (1975) 132 CLR 201
March v E. & M.H. Stramare Pty Limited [1991] HCA 12; (1991) 171 CLR 506
McLachlan v Purchas (Unreported, WADC, 12 February 1998, Library 980038)
McLachlan v Purchas (Unreported, WASCA, 21 December 1998, Library No 980749)
McLean v Tedman [1984] HCA 60; (1984) 155 CLR 306
Medlin v The State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1
Neindorf v Junkovic [2005] HCA 75; (2005) 80 ALJR 341
Papatonakis v Australian Telecommunications Commission [1985] HCA 3; (1985) 156 CLR 7
Paul v Rendell (1981) 34 ALR 569
Roads and Traffic Authority of New South Wales v Dederer [2007] HCA 42; (2007) 238 ALR 761
Shire of Manjimup v Cheetham [2010] WASCA 225
State of New South Wales v Moss [2000] NSWCA 133; (2000) 54 NSWLR 536
Stevens v Brodribb Sawmilling Company Proprietary Limited (1986) 160 CLR 16
Strong v Woolworths Limited [2012] HCA 5
The Commissioner of Railways v Ruprecht (1979) 142 CLR 563
Todorovic v Waller [1981] HCA 72; (1981) 150 CLR 402
Town of Port Hedland v Hodder (No 2) [2012] WASCA 212; (2012) 43 WAR 383
Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422
Western Australia v Watson [1990] WAR 248
BOWDEN DCJ:
On 12 August 2014 Mr Thompson was working as a roof carpenter on a house being built by the defendant. He was not employed by the defendant.
He was 'marking up', a process which involved walking along the wall plates on the top of the brick walls and marking the wall plates to show where the roof rafters would later be fixed.
The house design was such that it included a porch area at the front of the house. An isolated brick pier (pier) with an unfilled cavity had been constructed and Mr Thompson walked across a wooden beam which traversed at a straight angle, the span from the brickwork of the master bedroom to that pier. A second wooden beam traversed the span from the pier to the brickwork of the garage so that it ran at a right angle to the other wooden beam.
Mr Thompson says he had his right foot on the pier, his left foot on the bedroom beam and took a step intending to step onto the garage beam when the pillar collapsed and he fell 2.4 m on to the sand below. He suffered a comminuted distal radial fracture to the left wrist with an associated tear of the triangular fibrocartilage complex as a result of the fall.
Mr Thompson alleges that he fell as a result of the pier collapsing. He says the engineering plans for the house required the pier's cavity to be filled with mortar, cement or bricks and mortar and says that if this occurred the pier would not have collapsed. Mr Thompson brings this action against the defendant, both in negligence saying that the defendant breached the duties it owed him as the principal contractor responsible for building the house and also under the Occupiers' Liability Act 1985 (WA) (OLA) saying that the defendant breached the duty it owed him as occupier of the building site.
The defendant accepts that they owe Mr Thompson a duty as an occupier of the premises and as principal of the workplace but deny breaching that duty at common law or under the OLA.
The defendant says that the engineering plan did not require the pier cavity to be filled and even if it did, they are not liable for the conduct of the independent contractor (bricklayer) who constructed the pier which collapsed.
In any event the defendant says there were safer ways for Mr Thompson to perform his work that did not involve him stepping on the pier. Those ways were to utilise the trestles and planks present at the worksite or by securing the beams and placing and securing joists from the house to the beams. The defendant says that by choosing to 'mark up the beams' by standing on top of the beams and pier Mr Thompson adopted an unsafe system of work.
Some facts not in dispute
The house under construction by the defendant incorporated an isolated brick pier at the front porch which required a roof to be constructed over the porch. The top of the pier was approximately 2.4 m from the ground. The pier was constructed in a manner such that it had a cavity and the cavity was unfilled.
One of the pier's purposes was to support and bear the weight of the roof timbers. This was to be achieved by the following mechanism.
A rod had been installed through the centre of the unfilled cavity of the pier and the lower end of the rod had been secured into the mortar at the base of the pier. The upper end of the rod protruded from the pier and was to be secured to the roof timbers by being welded to a metal bracket installed on the 'hip' of the roofing timbers once the hip had been installed.
Two roof beams, one traversing from the brickwork of the main bedroom to the pier, the other traversing from the pier to the brickwork at the garage, had been fitted onto the pier by a person other than Mr Thompson.
The engineering drawings for the house specified that the rod which was inserted into the pier was to be 'build into perpend or cast into cavity'.
Mr Thompson was a roof carpenter who attended the premises as part of a roof carpentry team. He was not an employee of the defendant.
When the pier collapsed Mr Thompson fell to the ground and sustained injury. At the time he was performing his role as a roof carpenter.
The evidence
The plaintiff called five witnesses, Mr Thompson, Mr Van Der Meer, Mr Knox, Dr Gamage and Dr Slinger.
The defendant called four witnesses, Mr O'Regan, Mr Tennick, Mr Tarry and Mr Clark.
I accept that all of the witnesses did their best to assist the court. In most cases the witnesses were giving evidence of their experiences within the building industry and common practices they had experienced which of course does not rule out the existence of other common practices and experiences. Some witnesses were simply not as qualified as others. The rejection of a particular witness' testimony or the preference for another witness' testimony does not imply a finding of dishonesty in that witness.
In addition eight exhibits were received into evidence.
The following summary is intended to give a general overview of the evidence.
Mr Thompson
Mr Thompson was born on 15 December 1989. He trained as a roof carpenter under his father and worked as a roof carpenter for approximately eight years before the incident. During that time he had worked on hundreds of porch roofs and he said he knew how to work safely and was capable of working unsupervised.
On 12 August 2014 he attended the site in Bullsbrook with six or seven other persons from TJO Roofing. He said it was the roofing team's first day on the site. At that time he had been working with TJO Roofing for approximately two years, and although he regarded himself as an employee, he said technically he was a subcontractor.
Mr Thompson said that he started cutting in the wall plates which involved laying the plates on the brickwork so they could be nailed into the roof fittings.
He then commenced to mark out the roof span which involved measuring the length of the roof and rafters and marking the positions on the wall plate where the rafters would later be affixed.
He used a ladder to gain access to the top of the brickwork at the garage area and then walked around the brickwork in a clockwise direction marking the wall plates as he went. To assist him in this task he had his tape measure, crayon and nail bag.
During this process Mr Thompson was literally standing on the brickwork and eventually he came to the front of the house where a beam was already in position, effectively covering the span from the brickwork at the corner of the master bedroom to the pier located on the porch area situated at the front of the dwelling and another beam which was also in position went from the pier back to the brickwork at the garage area of the house. Mr Thompson said the beam was about 63 mm wide and there was a distance of approximately 100 mm between the edge of the beam and the edge of the pier.
Mr Thompson said that Mr Knox had installed the beams and they were nailed together where they joined on the pier and the other end of the beams were nailed to the wall plates and braced with a temporary base. Mr Thompson said he saw the nails connecting the beams to the wall plates as he walked over the top (ts 35, 41).
Mr Thompson said that he walked across the beam which traversed the span from the master bedroom to the pier and marked it up. He intended to step onto the beam traversing the span from the pier to the garage. He said he 'shuffled around and as he went to take that step onto the porch beam he just remembered being on the floor' (ts 19). He said he did not lose his balance or push off the pier and said that all he did was take a step to walk off the pier as he was intending to go onto the beam leading to the garage and the pier collapsed.
He said he had his right foot on the pier on the house side of the beam and his left foot on the beam running from the bedroom and took a normal step onto the garage beam and it went just behind him (ts 53). He denied taking a leap or pushing off (ts 53). He was unsure of which foot he led with and agreed that the beam was narrow.
He said he could not see if the cavity of the pier was void because it had the beam across it.
Mr Thompson said the pillar was about 2 1/2 m from the ground.
Mr Thompson said that the manner in which he performed the task of marking up the beams (that is from the top, by standing on the wall plates, the beam and the pillar) is the way that he normally marked up and over the years he had observed other roof carpenters marking up that way.
Mr Thompson denied that he pushed on top of the brickwork of the pier, the effect of his evidence was that he had his right foot on the house side of the pier and his left foot on the beam coming from the master bedroom to the brick pier and had stepped from that position intending to move on to the other beam when the pillar collapsed and he ended up on the ground.
Mr Thompson said that you do not normally position ceiling joists before you mark out the rafters and even if the ceiling joists were in position he would not step on them because they are only nailed at one end and the other end would be sitting on the brickwork unsecured.
He said in his experience trestles and planks were not used to mark out in the situation that he found himself. He said that the trestles and plank that had been used to erect the beams had been removed before he commenced marking out the beams and had been packed away on the truck.
Mr Thompson said that the marking out of the beams was the last task of the day as it was the boss's birthday and they were going to the pub to celebrate.
Mr Thompson said that at the time of the incident he did not have any handhold or any fall arresting equipment.
Mr Thompson said he landed on the ground between the porch and the pier and the beams landed on his neck and back. He said he was unconscious on the floor (ts 55) and 'woke up', and thought he was paralysed because he could not stand up as the beams were on his neck (ts 23).
Mr Thompson said that a building supervisor had not been on the site that day.
After the incident he was assisted up by a work mate and taken to Swan District Hospital where they tried unsuccessfully to relocate the wrist. He said he woke up during that procedure and was in extreme pain. He was then taken to Sir Charles Gardiner Hospital where he remained overnight and underwent surgery the next day. After discharge from that hospital he wore a hand cast for a couple of weeks and required hand therapy. He underwent further surgery on 19 January 2015, 21 September 2015 and in August 2016.
Mr Thompson said he made a partial return to work in March 2016. In about May 2016 he was certified as fit to perform his pre‑injury job. He said at that stage his wrist still clicked and clunked and whilst he was originally able to manage, after a period of time it just got hard.
In July or August 2016 he agreed to leave TJO Roofing. He said Mr O'Regan had been a friend of his and they were having disagreements because worker's compensation was not reimbursing Mr O'Regan for his wages and he left before things got out of hand and he lost a friend.
Mr Thompson denied he told Mr O'Regan that he would not work on a particular date because he was studying. He also denied saying that he had been terminated due to the economic downturn.
Mr Thompson said that during his rehabilitation he undertook a 12 month course and was re-trained as a project manager (in August 2017) but has been unable to obtain employment in that role due to his lack of experience. He also tried to obtain work as a site manager but had not been successful for similar reasons.
Mr Thompson said he had applied for positions as a forklift operator but many of those positions also involved working as a factory hand and other forklift jobs involved moving shipping containers which had a component of physical work that he was unable to perform and therefore these jobs were not suitable.
He said he did not see himself working as a customer service officer or a shop assistant (ts 27) because he wanted to feel important and be able to progress in a company rather than just stand at a desk. He said he would like to try something that he enjoyed. Mr Thompson said he did not want to be bored and liked to be active. In cross‑examination he said although he had not thought of such a position, he had applied for a sales type position with Bunnings.
Mr Thompson said that before the incident he was taking medication for depression because two of his friends had died, one in a motor bike accident, the other committed suicide. He said since the work incident his mood had become more erratic and he was taking stronger antidepressants.
Mr Thompson said the incident had changed his life as he used to go to the gym sometimes twice daily and play football but was now not able to do so because of the pain and aggravation to his wrist. His relationships were also affected because he did not have the finances to socially interact as before.
Mr Thompson said he still had his rehabilitation 'stuff' at home (ts 66).
At the time of the incident he was earning $1,070.18 gross or $863.18 net per week.
His current medication involved painkillers, anti-inflammatories and antidepressants and on occasions he was required to wear a wrist splint which needed to be replaced every three months.
Mr Thompson described his current disability as tiredness of the wrist which he further described as cramps and soreness such that sometimes he could not use his wrist.
Mr Thompson's wrist had visible scarring approximately 8 cm in length on the inner wrist and a 14 cm in length on the ulna aspect of the wrist which he said was itchy. Regrettably he had been subject to some distressing comments about the direction of the scar.
Mr Thompson said he had continually applied for jobs and produced (exhibit 3) 53 applications for employment that he had made online. He accepted that by applying for some of the positions he could be described as being ambitious.
Mr Thompson's evidence was criticised by the defendant as unreliable on a number of bases.
The defendant points out that Mr Thompson's evidence that he could not see into the pier's cavity and ascertain whether it was filled was contradicted by other witnesses.
Mr Thompson said he could see the rod sticking out of the cavity, but would not have been able to see if the cavity was filled unless he got down on his knees and looked (ts 47, 48). He said he could not see past the beam because the beam was sitting directly over the cavity. Mr Knox said a roof carpenter would be able to work out easily by looking at the rod whether the cavity had been filled (ts 159). Mr Tarry's evidence was that if a roof carpenter was standing above the pier he would be able to see if the cavity was filled. I accept the evidence of Mr Knox and Mr Tarry in this regard, however in my view this inaccuracy does not significantly dent the credibility of Mr Thompson.
Mr Thompson denied that he had pushed on the top of the brickwork or pier (ts 33, 51) or applied force to the pier (ts 52). Mr Van Der Meer's evidence was that the pier toppled because it had a horizontal component of force applied to it. In my view there is no substance in the criticism of Mr Thompson's evidence in this regard. The substance of his evidence is that he was moving off from the pier or stepping off and I accept Mr Van Der Meer's evidence that in so doing he created horizontal forces to the top of the pier. Mr Thompson was simply stressing that all he did was take a normal step (ts 52). He denied he used a deliberate pushing off motion. The effect of Mr Thompson's evidence was that he denied pushing off the pier or using extra force other than that inherent in the action of moving off or stepping off the pier. I find as a fact that Mr Thompson did not leap or push off the pier. Just prior to the incident his right foot was on the pier on the house side of the beam and his left foot was on the beam running from the bedroom to the pier, he took a step into the garage beam and the pier collapsed. I accept Mr Thompson's evidence in this regard.
Further, it was suggested that Mr Thompson's evidence (ts 19, 20, 53) was deficient because his description of how he fell differed to what he told others previously. The medical notes refer to a 'fall from roof into bricks/sand' (exhibit 8.5) or that he 'fell off roof' (exhibit 8.6) or that 'part of the roof standing on collapsed' (exhibit 8.7). I am not persuaded that the description in the medical notes establishes any or any meaningful inconsistency with the evidence. Dr Slinger's note is that Mr Thompson told him he 'was attempting to step backwards' when the collapse occurred. Mr Thompson denied he said this to Dr Slinger. Either Dr Slinger's note is in error or Mr Thompson made an inconsistent statement. Taking it at the highest for the defendant that Mr Thompson made an inconsistent statement such an inconsistency, made some two and a half years after the incident, does not cause me to doubt the accuracy of Mr Thompson's evidence.
Mr Thompson says he lost consciousness as a result of fall and woke up with the beams on his neck and back (ts 23, 55). The notes from the Swan District Hospital record Mr Thompson denying he hit his head when he fell (exhibit 8.5). Sir Charles Gardiner records show 'nil' loss of consciousness and make no reference to items falling on his neck or back (exhibit 8.6). Dr Overmeire's notes record Mr Thompson as saying the beams landed on his back and neck (exhibit 8.31). I accept that in light of the medical importance of a loss of consciousness that issue would have been specifically raised by the note takers at the two hospitals and that Mr Thompson replied in the manner indicated in the notes. An inconsistency is established. Mr Thompson I find did not lose consciousness and his evidence in this regard is in error. In the circumstances where the incident occurred suddenly and unexpectedly, I place little significance on this inconsistency.
Mr Van Der Meer's note after his meeting with Mr Thompson was that,
he was instructed to place ceiling joists, measuring span for rafter for employer, ladder access, traffic over wall plate to get to porch … standing on pier, part on beam, went to walk off, accident.
Mr Van Der Meer's evidence was that the reference to 'instructed to place ceiling joists' was part of Mr Thompson's other duties and Mr Van Der Meer understood that what Mr Thompson had told him was that he was marking out the main beams so the roofing members, which were the rafters, could be placed in future and that Mr Thompson had been on the beams marking out the span for the rafters not standing on the beam to place ceiling joists. I accept Mr Van Der Meer's note lacks definitive precision but I accept Mr Van Der Meer's explanation of what he was told by Mr Thompson and what he intended to convey by the notes. It does not establish any inconsistency that reflects adversely on either Mr Thompson or Mr Van Der Meer.
The defendant points to Mr O'Regan's evidence at ts 202 where he says he gave Mr Thompson instructions to mark the rafters on top of the beams (ts 208, 210). Mr Thompson's evidence was that he was helping Mr O'Regan mark the roof and assisted in laying the roof plates by cutting them, then moved to marking out the roof span, then marked the rafters and creepers on the wall plate by putting a mark on the wall plate for the rafters.
Mr O'Regan agreed that Mr Thompson had been helping with wall plates (ts 210) and that at the time of the incident he had asked him to mark down the beams.
Mr O'Regan maintained that he marked out the entire house, but agreed that Mr Thompson marked out the porch (ts 211) and said it was possible that Mr Thompson had marked out the master bedroom before he went onto the porch (ts 212). Whether Mr Thompson had marked out the master bedroom before he went onto the porch or precisely what he had been doing before the incident is of little relevance. It is not in dispute even by Mr O'Regan that at the time of the incident Mr Thompson was marking out the porch area (ts 211). I find no substance in this point.
I accept Mr Thompson's evidence and find as a fact that in the process of marking up the roof he walked across the beam which traversed the span from the master bedroom to the pier and was in the process of stepping on to the beam which traversed the span from the pier to the garage and as he took a step to walk off the pier the pier collapsed. The manner in which Mr Thompson stepped was not exceptional or out of the ordinary.
If any inconsistency is sought to be established through the use of Ms Stewart's report (exhibit 8.5), I note Mr Thompson denied saying what was attributed to him by Ms Stewart. Ms Stewart was not called as a witness. Having assessed Mr Thompson's credibility, I prefer his evidence to Ms Stewart's report.
I find as a fact that the beams were nailed together virtually at right angles at the top of the pier. I accept Mr Thompson's evidence in this regard. Mr Knox effectively said that this was his normal practice. Mr O'Regan agreed that the beams had been nailed together.
The defendant says that Mr Thompson is the only person who says the beams were secured at the house end. Mr Thompson said he knew for a fact that they were nailed to the wall plates at the house end (ts 20, 21, 33, 35, 41, 43) because he could see the nails as he walked over the top (ts 35). The defendant says that Mr Tarry's evidence at ts 249 ‑ 259 and Mr Knox's evidence at ts 151 supports the finding that there is no evidence that either beam was fixed at one end to the house. I reject this submission. Mr Knox and Mr Tarry were shown photographs taken at some unknown time after the incident and asked whether those photographs showed any evidence that the beams had attached at the house end. Evidence that there is nothing in the photographs showing that the beams were attached to the house is not evidence that the beams were not attached to the house.
The defendant points to Mr Thompsons' evidence (ts 22) that the beams were braced. Mr Van Der Meer was not told this but said Mr Thompson told him the beams were fixed in position by others (ts 121).
The defendant's closing written submission submit that 'Mr Knox's evidence that he would have connected a brace to a beam that was not the beam suggested by Mr Thompson's evidence' (ts 146 ‑ 147). Mr Knox when describing his normal procedure said that the beams would be nailed or fixed into the wall plate at the house end. Later in his evidence he said that the beam would either be fixed into the wall plate or another brace coming down (ts 146 ‑ 147). When shown the photographs Mr Knox said 'there would have been a brace (describing it as a temporary brace) coming off the wall plate on the side to the side of the beam' and saying it would have been secured to the wall plate and the beam (ts 152). Specifically in relation to the bedroom side of the house Mr Knox said that 'it would have been (the beam) notched over the lintel and even nailed into the wall plate or another brace coming down'.
Mr Knox's evidence on this point is not crystal clear, however whether there was a brace is not a critical issue because Mr Van Der Meer, the only structural engineer to give evidence, said that the beams would not have been unstable if they were joined together only at the pier (ts 121, 122).
I reject the suggestion, however faint, that Mr Thompson was not in the process of stepping off the pier when it collapsed, but was standing solely on the beams and the beams collapsed hitting the pier as they fell causing the pier to collapse. I accept that Mr Thompson's evidence that the beams were braced is not supported categorically by clear unequivocal evidence from Mr Knox (or any other witness) and that does cause me to scrutinize Mr Thompson's evidence more closely, however having done so, I am satisfied that in relation to the issues of what he was doing immediately before the pier collapsed his evidence can be relied upon.
I found Mr Thompson's evidence generally to be straightforward and credible. I accept his evidence on the central issue of what he was doing at the time of the incident and his working capacity.
Mr Van Der Meer
Mr Van Der Meer is a consulting structural engineer. He has also been a registered builder since 1987 and has experience in designing and constructing residential buildings.
Mr Van Der Meer has attended building sites since 1968 and has been engaged by a large number of builders to design and check constructions. He has attended houses designed by others and provided reports to builders about standards of construction and engineering risk.
He agreed that he was not a mass production or low cost builder.
He prepared five reports which are exhibits 1.94 to 1.128. The reports were prepared in May 2016 (exhibits 1.94 to 1.103), March 2017 (exhibits 1.104 to 1.108), October 2017 (exhibits 1.109 to 1.115), May 2018 (exhibits 1.116 to 1.123) and September 2018 (exhibits 1.124 to 1.128.)
Whilst in his earlier reports Mr Van Der Meer performed some calculations based on his mistaken belief that it was the alfresco brick pier which collapsed, he performed further calculations relating to the pier actually involved. I am satisfied that this initial error does not affect the validity of his conclusions.
Mr Van Der Meer said the pier was an unfilled pier constructed of relatively light weight fast wall brick and such a pier was very weak and not capable of withstanding relatively low horizontal forces and required a relatively low horizontal force applied to the top of the pier to cause it to become laterally unstable. Mr Van Der Meer said that an unreinforced pier would give no warning of its failure.
Mr Van Der Meer said that hollow core isolated piers on building sites are relatively uncommon and in his experience most isolated piers were filled by bricklayers.
He pointed out that the structural drawings for the pier (exhibit 1.108) specified:
R10 GALV. ROD IN PIER,
COG 150 INTO PIER
(OR USE 650 x 150 R10 STARTER)
BUILD INTO PERPEND OR CAST INTO CAVITY.
BOLT TO BEAM AT TOP
He said that 'cast' was a universally used term in engineering and design and meant the same thing to all engineers. To cast something meant to engage it in another medium, that is, in this case to surround the rod and engage it with that medium and make it monolithic with the surrounding medium. This involved filling the cavity with mortar, cement or broken bricks and mortar so as to cast the rod into the cavity.
He said the piers can be filled with the same mortar that is used to construct the pier.
Mr Van Der Meer explained that the perpend is the vertical mortar joints between the bricks and the reference to build into the perpend applied if the pier had no cavity, however in circumstances where the pier had a cavity the structural drawing required the rod to be cast into the cavity.
Mr Van Der Meer said the pier was not constructed in accordance with the engineering design as the rod had not been cast into the pier.
He said that the strength of the pier would have been increased quite markedly if the cavity had been filled with brickwork, mortar or cement.
He said that in his 45 years' experience it was the common practice of builders and bricklayers to fill the cavity of a pier in the manner described so that it engages with the rod within the pier and thus the rod is cast into the pier.
He said that the cost of filling the pier was small at about $30 and it was an effective method of making the pier more structurally effective. He said it did not matter whether the cavity was filled with mortar, concrete or broken bricks and mortar, any such medium would effectively cast the rod into the cavity and provide a more structurally effective pier.
Mr Van Der Meer said that as the void was not filled the pier was relatively weak when subjected to horizontal components of force.
Mr Van Der Meer calculated that the horizontal force required to be applied to the top of the pier to crack the mortar bed joints (a cracked hollow pier) near the base of the pier was approximately 33 kg when the mortar had achieved full comprehensive strength, which would take some weeks after the mortar was laid. In his view this brick pier had not reached the stage where the mortar had achieved full compressive strength. Once the mortar joints were cracked, the influence of the mortar strength was terminated and the stability of the pier is reliant on its self-weight.
Mr Van Der Meer said that the horizontal force required to topple a cracked hollow brick pier was approximately 22 kg and the failure would be sudden and without warning. The horizontal force required to topple a reinforced pier would be approximately 71 kg.
Mr Van Der Meer's calculations clearly show that if the pier had been filled with concrete or mortar it would have been stronger and could have supported a much higher horizontal force. On his calculations the force required to push over or topple a reinforced pier was more than three times the force required to push over a hollow or unreinforced pier.
Mr Van Der Meer said that if the pier cavity had been filled in the manner he referred to the horizontal forces applied by Mr Thompson as he attempted to move back to the main wall of the house would not have been sufficient to cause the pier to fail.
Mr Van Der Meer said the unfilled pier was laterally too weak to support the application of even low intensity lateral loads such as those applied by the feet of roof carpenters. He said the stability of an isolated pier is not ensured by connecting a rod within a hollow core of a pier to the timber roof being supported on the pier.
Mr Van Der Meer said it was not common practice for roof carpenters to use scaffolds to install and measure rafters and beams on an isolated brick pier particularly on single storey house constructions and it was not practical to provide scaffold access to all parts of roof framework being constructed by roof carpenters.
He said he often witnessed roof carpenters standing on brick piers and it was common practice for roof carpenters to traverse wooden roof beams which were partly supported by isolated brick piers. He said it was quite normal for roof carpenters to walk on wall plates and bearers (beams) and described the beams used on this pier as being 'rather large'.
Mr Van Der Meer said roof carpenters standing on brick piers was not the issue, the issue was the horizontal forces applied to the pier when a person was moving off the pier.
Mr Van Der Meer said the pier did not topple because Mr Thompson was standing on it but because in the process of taking his step from the pier to the garage beam, that is as he left or stepped off the pier onto that beam, Mr Thompson's body mass plus the acceleration of his step applied forces to the top of the pier, those forces had a horizontal component and the horizontal force applied was sufficient to topple the pier.
Mr Van Der Meer said the force applied to the top of the pier was effected not only by mass and acceleration but also the angle that the force was applied and the point on the pier of which the force applied. All these factors were relevant in producing the force that ultimately toppled the pier.
Mr Van Der Meer said a change in any one of those components such as a different angle or a different mass or a different acceleration or a different contact point on the pier may have meant that the pier would not have toppled. He agreed that if the step was at a different angle that could create less horizontal force and the pier may not have toppled.
Mr Van Der Meer assumed there were no horizontal reactive forces provided by the mortar in the joints of the brick pier and accepted that if the brick pier had been built on a concrete foundation without any mortar adhering the brick to the foundation, then the amount of force required to topple it would have been less than the amount required to topple the pier which had mortar adhering to the concrete foundation.
The central thrust of Mr Van Der Meer's evidence was that the pier was not constructed in accordance with the engineering design because the rod had not been cast, that is, the void had not been filled. He said that more force was required to topple a pier with a cavity that was filled than a pier where the cavity was not filled and that if the cavity of this pier was filled, the horizontal force that was applied by Mr Thompson as he stepped off it would not have resulted in the pier toppling.
Mr Van Der Meer agreed that generally tradesman would not be able to predict the destabilising force required to topple a brick pier.
In performing his calculations Mr Van Der Meer only took the force applied to the top of the pier into account, not resistance that would have occurred from the strength of the pier.
Mr Van Der Meer said installing ceiling joists would not have improved the stability of the brick pier.
He said that if the beams were stable a roof carpenter could stand on them, if not a roof carpenter should not stand on them. Mr Van Der Meer said if the beams were joined together they would be stable.
Mr Van der Meer agreed that it was safer to mark‑up beams using a trestle scaffold and agreed that roof carpenters carried trestles in their car 'quite a lot.' Whilst in his report he said it was common practice for roof carpenters to traverse wooden roof beams which are partly supported by isolated brick piers, in his evidence he said that in a patio area without walls it was more common practice to use scaffold and trestles.
Mr Van der Meer agreed that he had not been told that joists or braces were in place or that an A-frame and scaffold was available nor was he told that the beams were secure to the house, although he was told that the beams were fixed by others and assumed that the beams would have been fixed to the wall.
Mr Van Der Meer's notes prepared on the day he interviewed Mr Thompson being 7 June 2016 record 'Instructed to place ceiling joists'. Mr Hancy suggested that this was what Mr Thompson told him. Mr Van Der Meer said that what he was trying to effect by the notes was that one of Mr Thompson's duties was to place the ceiling joists and his intention was to convey that Mr Thompson had told him he was marking out the main beams so the rafters could be placed in future and that at the time of the incident he was on the beams marking out the space for the rafters and he was not standing on the beam to place ceiling joists. I accept Mr Van Der Meer's explanation (ts 120). In my view, nothing of significance turns on this point.
I accept Mr Van Der Meer's expertise and evidence. He gave his evidence in a straightforward manner. His evidence was credible and cogent. He is an experienced consulting structural engineer (the only structural engineer to give evidence in the trial) with extensive experience in the building industry.
Mr Knox
Mr Knox is a roof carpenter with approximately 30 years' experience. He works on an average of three to four houses per week. He said that Mr Thompson and Mr O'Regan had been his apprentices.
On 12 August 2014 he had been working for Mr O'Regan for around about 18 months and was at the work site but did not see the incident. After the incident occurred he saw Mr Thompson sitting on his bottom holding his wrist.
Mr Knox recalled that there were problems with the job and he thought the incident occurred when they were packing up to leave. He said the marking out was one of the last things being done.
Mr Knox could not recall if he set up the scaffold, consisting of an A-frame trestle and planks used earlier that day but thought that he 'probably did' (ts 154). He said at the time of the incident the scaffold had been packed up. He did not know when the scaffold was packed away.
In the course of his 30 years' experience as a roof carpenter Mr Knox said he had 'marked out' the beams himself and 'seen plenty of other teams do so'.
Although Mr Knox could not remember installing the beams, he said he was about 80% certain that he did so. He said he would have nailed one end of the beam into the wall plate and the other end would be sitting on top of the pier, the other beam leading to the bedroom would be notched over the window lintel, because it could not be put onto a window frame, and either nailed into the wall plate or supported by a temporary brace going from a wall plate to the beam (ts 145,152). He said the two beams would be nailed together, effectively where they meet at the pier. He agreed that the photographs (exhibits 1.134 and 1.135) provided no evidence that had occurred.
He said generally once the beam was fixed to the house end and the pier, it should be secure.
He said questions as to whether the pier cavity void was full were for the bricklayer and the supervisor, although a roof carpenter would be able to work out easily by looking at the rod whether the cavity had been filled (ts 159).
Mr Knox said a boilermaker would later come on site and fix a bracket to the hip, which is the piece of timber coming from the roof to the top of the pier, and then the rod coming out of the pier cavity would be welded to that bracket.
Mr Knox agreed in cross-examination that when constructing a porch roof to an isolated brick pier the appropriate procedure was to set up a scaffold system for at least one end of the beam and using that scaffold, place the beam between the house and the brick pier and then nail the beams at the top of the brick pier and then nail or otherwise fix the beam to the roof plate or the lintels at the other (house) end. Mr Knox said you would then mark out the joists and rafters, and attach the joists and rafters to the beams. He said this would be done whilst standing on the porch beam and the walls (ts 150).
Mr Knox was not able to tell from the photographs whether the beams that were installed after the incident were the same beams which had been installed prior to the incident.
Mr Knox said at one stage in his evidence that 80% of the time roof carpenters would stand on scaffold when they marked out the porch beams, however he agreed that if scaffolds were not used the roof carpenter would stand on the beams or the pier depending on how good their balance was (ts 154).
Later in his evidence Mr Knox said that when installing the beams you would have a trestle scaffold but said that when you were marking up when the beams were already in place, 80% of the time you would mark it from the top without scaffold (ts 159 ‑ 160).
Mr Knox clearly gave inconsistent answers. In one answer he says that 80% of the time roof carpenters would stand on scaffold when marking out porch beams, in another answer he says that 80% of the time they would mark it from the top without scaffold.
I find that Mr Knox's evidence that 80% of the time that they would stand on scaffold was given in error as a result of misunderstanding the question or the pressures of giving evidence.
I say that because when the topic was first raised Mr Knox categorically said it was common practice for carpenters to fit the wall plates and then mark out the roof from 'the top' (ts 144) and stated (ts 143, 144) that in 'WA wholly, solely all carpenters would put the wall plate down and mark out the roof from on top' and 'in WA I think that's the way it's always been done is you plate it and then mark it first but that's my experience anyway'. In response to the question from the court 'you plate it and you mark it and you mark it from the top? Mr Knox replied 'Yes'.
I accept that Mr Knox cannot recall fitting the beam but other evidence which I accept from both Mr O'Regan and Mr Thompson establishes that he did so.
Mr Knox's answer relied upon by the defendant as establishing that there was no evidence that the beam was fixed at the end of the house has to be examined in context of the questions being put to him at that time. He was being shown photographs (exhibits 1.134 and 1.135) and asked whether after examining those photographs he could see any evidence that the beams had been fixed at the wall end.
Mr Knox's evidence of the type of beam brace that he suggested he would have fitted if one was fitted was different to the type of beam brace that Mr Thompson suggested was fitted. Mr Knox's evidence in this regard was somewhat difficult to follow. Originally he seemed to suggest that the beams at the house end were nailed or supported by a brace but then after further questioning adopted the view that there was a brace. In this regard his evidence was not clear or precise no doubt due to the difficulties he had in even recalling if he installed the beams.
Mr Knox is an independent witness in that he knew both Mr O'Regan and Mr Thompson, both had been apprentices to him and he worked with Mr O'Regan for around about 18 months to 2 years.
Mr Knox gave his evidence in an honest, straightforward manner. He is an experienced roof carpenter. He could not remember some details, not surprising in light of the number of roofs he works on weekly and in some areas his evidence lacked precision. Mr Knox was clearly a person more comfortable in his own working environment than giving evidence in court. I generally accept his evidence.
Dr Gamage
Dr Gamage is a general practitioner and first saw Mr Thompson on 30 September 2015, that is, some 12 months after the injury occurred.
Dr Gamage saw Mr Thompson on six occasions in 2015, 13 occasions in 2016, one occasion in 2017 and on at least two occasions in 2018.
On many occasions Dr Gamage was consulted because of the need to obtain worker's compensation certificates.
Dr Gamage regularly notes that Mr Thompson was suffering from ongoing pain. The references in Dr Gamage's notes to Mr Thompson's anxiety, depression or irritability increase after 31 August 2017.
Dr Gamage said that Mr Thompson suffered ongoing symptoms which interfered with his life but he could not be more specific and said the incident caused symptoms of anxiety and depression.
Dr Gamage prescribed medication for depression, inflammation and pain relief. It was also necessary for medication to relieve gastric symptoms caused by some of the other prescription medication.
Dr Gamage said that Lexpro (antidepressant) had been effective at early stages but a stronger medication Pristiq was later required.
I accept Dr Gamage's evidence although little turns on this as factually his evidence was not in dispute.
Dr Slinger
Dr Slinger is a very experienced orthopaedic surgeon and an approved medical provider for worker's compensation purposes.
He saw Mr Thompson on two occasions being 28 March 2017 and 2 July 2018 and prepared two reports dated 29 March 2017 and 2 July 2018 (exhibits 1.35 to 1.41 and 1.42 to 1.48).
Dr Slinger said Mr Thompson suffered a comminuted distal radial fracture of the left wrist with an associated tear of the triangular fibrocartilage complex disc.
Dr Slinger noted that there was an unsuccessful reduction attempt on the wrist at Swan District Hospital in August 2014. Mr Thompson was then transferred to Sir Charles Gairdner Hospital and underwent open reduction and internal fixation of the left wrist on 13 August 2014. Upon completion of that surgery his wrist was placed in plaster and Mr Thompson was required to use a splint for approximately three to four months and undergo physiotherapy.
Dr Slinger noted that Mr Thompson was able to return to work about four to six months later.
On 19 January 2015 Mr Thompson underwent further surgery whereby the metal was removed from his wrist and his wrist was placed in a splint.
On 21 September 2015 an arthroscopy, debridement, excision of the ulnar styloid ossicle, ulnar shortening osteotomy and repair of the triangular fibrocartilage complex occurred. Subsequently Mr Thompson was required to wear a splint and undergo further occupational therapy and was unable to work for approximately six months then placed on light duties and subsequently returned to full duties.
On 8 August 2016 further metal work was removed from Mr Thompson's wrist.
Dr Slinger noted that medication for pain relief, inflammation and antidepressants have been prescribed to Mr Thompson.
Dr Slinger said that when he first reviewed Mr Thompson he still suffered from pain in the left wrist in the cold weather and was likely to suffer from cramps when undertaking full physical activities.
Dr Slinger observed tenderness and pain in the area of the scarring and on the ulnar border and said Mr Thompson's lifting ability had been reduced to 20 kg, his grip strength had been reduced and his sleep was being interrupted occasionally by the pain.
Dr Slinger said Mr Thompson was able to manage all his domestic activities, although the left wrist difficulty affected his typing and restricted him from playing football and going to the gym.
Upon examination Dr Slinger noted the scarring and the tenderness over the ulnar border and noted that Mr Thompson lacked a few degrees of dorsiflexion and palmar flexion and ulnar deviation. Dr Slinger said that Mr Thompson's hand and finger movements were not affected, however the grip strength of his left hand was less than his right.
Dr Slinger said Mr Thompson would never be able to return to his pre‑accident employment and was permanently restricted from any heavy labouring and restricted from lifting weights above 20 kg but could work as a project manager and do light work such as retail sales, customer service and similar light duties.
In March 2017 Dr Slinger assessed Mr Thompson's disability as a 10% loss of function of the upper limb below the elbow. When he reviewed Mr Thompson in July 2018 Dr Slinger said that Mr Thompson had a 20% loss of function of the upper extremity.
Dr Slinger said he felt that his first assessment was inadequate to assess Mr Thompson's disability so for the 2018 assessment he used as a point of reference the AMA guide to the evaluation of Permanent Impairment (ts 169) which is used in worker's compensation issues in Western Australia.
He noted that Mr Thompson was still able to manage all domestic activities, and his ability to perform household maintenance and light gardening was unaffected. Mr Thompson was required to take some medication. He did not think there was any need for ongoing medical treatment and said Mr Thompson should avoid activities which provoked his wrist and should use a wrist splint when he was involved in heavy lifting.
Dr Slinger's opinion was that surgery was not required in the immediate future but over a 20 to 30 year period there was a 50% likelihood of Mr Thompson developing degenerative changes and a 10% to 20% chance of future surgical intervention being required as a result. Dr Slinger estimated those costs in the vicinity of $15,000 to $20,000.
Dr Slinger noted in his 2018 report that Mr Thompson's pain was aggravated by factors such as cold weather, lifting weights, using a keyboard or operating an Xbox and his left wrist was weaker and felt tighter than his right wrist. Dr Slinger noted that Mr Thompson's sleep was being aggravated and that activities such as people pulling on his arm would aggravate his injury. He noted Mr Thompson suffered cracking of the wrist and itching over aspects of the forearm. He did not think Mr Thompson required ongoing medication.
Dr Slinger noted that Mr Thompson could not perform exercises to strengthen the wrist because of the pain that that would produce.
I accept Dr Slinger's undoubted expertise as a medical specialist. Whilst there is a difference between the 2017 and 2018 assessment of loss of function, I accept Dr Slinger's explanation for his reassessment in 2018.
Mr O'Regan
Mr O'Regan is the proprietor of TJO Roofing, a contract roof carpentry business. Mr O'Regan served his apprenticeship under Mr Thompson's father.
Mr O'Regan said Mr Thompson contracted his services to TJO Roofing, although he paid superannuation to Mr Thompson.
Mr O'Regan said he received communication from the defendant saying that the brickwork was done and they were able to start work.
In relation to the incident of 12 August 2014 Mr O'Regan said it was his birthday and he had proposed to pack up early if possible and go off on a birthday celebration.
It was their first day on this particular job and he went to the site at around about 7.00 am. He said there were five people on the site. He instructed Mr Knox to put the beams up and he provided some aluminium planks and 1.8 m high trestles for that purpose. Mr O'Regan said he recalled the trestles were at all four points of the porch either side of the pier and on the garage and house side.
Mr O'Regan said he went up the ladder that was near the garage around about 7.30 am or 8.00 am and had been up there a long time before Mr Thompson first came onto the roof. He did not see Mr Thompson access the roof via the ladder. He said Mr Thompson helped him with the wall plates for a short period of time and then he asked him to go and mark out the beams.
Mr O'Regan said he had instructed Mr Thompson to mark out the rafters on top of the beams. He said Mr Thompson 'found it easier to mark on top of the beams'. Although he originally said that Mr Thompson got on top of the beams via the scaffold he agreed that he did not know how he got onto the beams and was just presuming that he went via the scaffold (ts 203).
Mr O'Regan said he marked out the roof however he did not mark out all the way to the porch stopping near a feature in the master bedroom. He agreed that Mr Thompson marked out the last 'little bit' and the porch area. Mr O'Regan agreed that it was possible that Mr Thompson marked around the master bedroom before he went onto the porch, although he did not think this occurred (ts 212).
He said that he saw the scaffold (trestles and planks) and it was not packed away until after the incident occurred. Mr O'Regan said Mr Thompson had no need to be on the beam or pier because the scaffold was around the beam.
Mr O'Regan said he did not see the incident but heard a noise and when he went to the area he saw Mr Thompson curled up on the sand holding his wrist. He saw that the scaffold and beams had fallen over and the pier was collapsed next to Mr Thompson. He agreed that it was possible the beams had been moved from Mr Thompson before he saw Mr Thompson on the sand.
Mr O'Regan was able to see that the beams had been nailed together because the nails were sticking out of them and they had fallen apart.
Mr O'Regan said that Mr Thompson had fallen outside of the notional porch area as had the scaffold but the beams had fallen inside that area. He did not know if Mr Thompson had fallen in that position or moved to that position after falling.
He said Mr Knox took the beams and put them in the garage and another worker removed the scaffold.
He said that either the next day or the day after that Mr Knox put the same beams up again. He agreed that although the beams put up looked like the same ones that had fallen he could not be sure they were.
Mr O'Regan said it was common practice when constructing a porch roof with an isolated brick pier to set the scaffold up around the porch, measure the span of the beams, cut and put the beams up, nail the beams to each other and into the wall plate and nail the beams at their joint points.
Mr O'Regan said the positioning and nailing of the beams would be done from the scaffold and that the marking out of the beams would also be done from the scaffold, then the joists would be put in between the beams and the rafters put into place.
He agreed that roof carpenters needed to stand on top of the pier to nail the hip of the beam and stand on the beam to nail the rafters (ts 218) and when this was done they could have one foot on the beam or one foot on the pier or both feet on the pier, however he said that when this occurred the joists were already in place and basically the ceiling was complete.
Mr O'Regan said that when Mr Thompson returned to work on a full‑time basis for two to three months he was able to observe Mr Thompson carrying out his duties.
Mr O'Regan said that Mr Thompson performed his duties 'fine, well enough' but did complain about his wrist every now and then and he could hear a clinking in Mr Thompson's wrist.
He said eventually Mr Thompson chose not to come to work. Mr O'Regan said that there was one time when Mr Thompson did not show up and was really needed so he called him and ultimately received a message from Mr Thompson saying he was not coming in and that he needed to study. Mr Thompson never worked for him again. Mr O'Regan said that if Mr Thompson had wanted to work he could have provided him with work.
Mr O'Regan said that he told J‑Corp's supervisor after the incident that he thought the pier was faulty and agreed that after the pier was rebuilt it was rebuilt without a cavity.
Mr O'Regan agreed that it was common practice for roof carpenters to step on top of beams as they marked out and in that process and from time to time would step on piers.
Mr O'Regan agreed that it was not always possible to put scaffolding everywhere and it was common practice for roof carpenters to walk along wall plates, beams or piers (ts 214).
Mr O'Regan agreed he had sent an email stating 'I terminated Alex's employment because he is an unreliable worker'. He agreed that it was annoying and irritating that Mr Thompson was taking time off work for medical attendances and that had put a strain on their friendship but said he knew Mr Thompson had hurt himself and it 'was what it was'.
He said the friendship did not break up until Mr Thompson did not want to come back to work.
He also said that he had never seen a brick pier collapse from somebody being on top of the pier.
I do not accept Mr O'Regan's evidence on a number of points.
On the issue of where Mr Thompson landed when he fell onto the ground, there was a difference between Mr O'Regan's evidence and Mr Thompson's. I prefer Mr Thompson's evidence on that matter. Mr O'Regan was unable to say whether Mr Thompson had moved before he saw him on the ground. Mr Knox's evidence does not assist on this issue.
I find that trestles and planks organised in a scaffold arrangement had been used to place the beam onto the pier. I accept Mr Thompson's, Mr Knox's and Mr O'Regan's evidence in this regard. However, I do not accept Mr O'Regan's evidence that when Mr Thompson fell to the ground the scaffold was in close proximity to him. This is contradicted by the evidence of Mr Thompson and Mr Knox. They each corroborate the others evidence and Mr Knox having worked with both Mr Thompson and Mr O'Regan was impartial. I reject Mr O'Regan's evidence on this point and prefer the evidence of Mr Thompson and Mr Knox that the scaffold had been packed away at the time of the incident.
Mr O'Regan's evidence was that Mr Thompson was able to perform his pre‑accident duties well enough in approximately July/August 2016, although he complained about his wrist every now and then and you could hear a clicking in his wrist. Mr O'Regan's evidence was that Mr Thompson essentially stopped coming to work because he wanted to study.
Mr O'Regan's evidence as to the clicking of the wrist supports Mr Thompson's evidence that he was experiencing wrist difficulties.
Mr Thompson's evidence was that when he returned to work on a full-time basis in May 2016 he still had difficulties in that his wrist clinked and cluncked (ts 60) and after a while it was hard (ts 61). Mr Thompson said he stopped working because he did not want to make the position any worse because of their deteriorating relationship in the context where they had been friends and that he agreed to leave before there were any more disagreements with Mr O'Regan and things escalated out of hand. He said they were having disagreements over worker's compensation not paying him on time and Mr O'Regan trying to reimburse him for worker's compensation (ts 64). I accept Mr Thompson's evidence which is to the affect that he was finding work progressively harder.
Dr Fairhurst's opinion as early as February 2016 was that he considered it prudent for Mr Thompson to transfer to a role of a building supervisor and that Mr Thompson would be well advised to reduce the requirements for heavy manual duties.
Dr Keogh noted in September 2016 (exhibit 1.18) that Mr Thompson was looking at a more sedentary occupation and he thought this would be a sensible option.
In October 2016 Dr Overmeire was of the opinion that Mr Thompson could not return to work as a roof carpenter and he needed to be permanently redeployed (exhibits 8.30 to 8.37). He noted he would not be able to work as a driller's offsider.
Dr Slinger reported in March 2017 that Mr Thompson was not fit for pre‑accident employment but suitable to work as a project manager or other alternate like work such as retail sales, customer service or similar light duties which is entirely consistent with Dr Overmeire's conclusion.
I find that Mr Thompson had been working with difficulties due to the nature of his injury and that he left because of difficulties arising between Mr O'Regan and himself.
However I reject Mr O'Regan's work capacity assessment and prefer and accept the contemporaneous medical evidence of Dr Fairhurst (February 2016), Dr Keogh (September 2016) and Dr Overmeire (October 2016) a consultant occupational physician, that Mr Thompson was not fit to work as a roof carpenter. That evidence is further corroborated by Dr Slinger's later examination (March 2017).
I draw the inference from the combined weight of Mr Thompson's evidence and the assessments of Dr Fairhurst, Dr Keogh and Dr Overmeire that as at the date he ceased roof carpentry work in July/August 2016 Mr Thompson was not capable of working as a roof carpenter due to the injuries he sustained and reject Mr O'Regan's evidence to the contrary.
I accept that by July/August 2016 there were difficulties in the workplace, however I am satisfied on the balance of probabilities that by the time Mr Thompson stopped working with Mr O'Regan in August 2016 he was not capable of working as a roof carpenter. Dr Overmeire reports that Mr Thompson told him his employment was terminated due to a downturn in the market. Whether Mr Thompson told others that he left because of an economic downturn is of little consequence.
Whilst acknowledging that Mr Thompson underwent further surgery in August 2016 to remove metal work from his arm the defendant says Dr Keogh's evidence establishes that he would be able to fully return to work two weeks after that operation.
Mr Thompson's position is that he is not able to work as a roof carpenter. He says that since mid‑2016 when his employment ceased he has been unable to obtain employment in spite of retraining to become a project manager. He says that he has lost 50% of his earning capacity and urges me to apply Bowen v Tutte (1990) Aust Torts Rep 81-043, 68,086 on the basis that,
where a plaintiff has suffered a significant disabling injury which obviously affects the range and nature of the work he can therefore perform, a tribunal of fact can, without specific evidence as to what other persons with that kind of disability can earn, make a judgment and assessment on a percentage basis or otherwise of the value of the lost capacity [applying Yammine v Kalwy [1979] 2 NSWLR 151].
In that case, Malcolm CJ stated:
Where it is clear that the plaintiff has suffered a loss of earning capacity as where there has been total loss of capacity to earn in the occupation or profession for which the plaintiff has previously been employed, the court will do its best to place a value on that loss, notwithstanding the absence of evidence of the availability of employment within the plaintiff's residual capacity and evidence of the amount which could be earned in such employment (68,086).
In that case the court determined that the approach adopted by the learned trial judge of taking into account the existence of a residual earning capacity by deducting a set percentage from the figure he calculated for the total loss of earning capacity was correct (although the percentage was varied on appeal). The court acknowledged the need to give recognition to the difficulties an injured worker can have competing for and obtaining suitable employment in the type of circumstances thrown up by that case.
Where earning capacity has undoubtedly been reduced but its extent is difficult to assess (for example, because there is no evidence or no precise evidence of relevant earning rates), the court, doing the best it can, may properly assess damages in a global amount: see Chelini v Northern Territory Port Authority (1976) 12 ALR 519, 519 ‑ 520; State of New South Wales v Moss [2000] NSWCA 133; (2000) 54 NSWLR 536 [72] - [78], [87].
In closing Mr Bruns suggested making a global award for future loss of earning capacity.
For reasons expressed in [193] ‑ [201] I accept that whilst Mr Thompson failed to avail himself of work that was available from Mr O'Regan, he was, on the undisputed medical evidence, unable to continue to work as a roof carpenter from at least September 2016 when Dr Keogh corroborated Dr Fairhurst's February 2016 opinion that it was a good idea for Mr Thompson to seek a more sedentary occupation.
Whilst Mr Thompson left the employment of Mr O'Regan in about August 2016 because of increased work difficulties and because of what was clearly disharmony between the two of them, in my view it was reasonable for him to cease work from that time and I am satisfied that from September 2016 it was appropriate for him to commence looking for alternative employment. I find that Mr Thompson has been fit for the alternate occupations referred to by Dr Slinger since that date.
I would allow 12 months for Mr Thompson to complete an appropriate retraining course that is from September 2016 to September 2017. I find that some of the positions Mr Thompson applied for were outside his range of experience and competence, however I am satisfied he had been actively looking for employment but has been unable to find employment.
As past loss of earnings until 13 October 2016 has been agreed and included above I allow from 13 October 2016 to 1 September 2017, lost income of $1,070 gross per week or $863 net per week (46 weeks ) $49,220 gross or $39,698 net.
I would allow a further two year period, that is, to 1 September 2019 for Mr Thompson to re‑establish himself in the labour market from which time I am satisfied that he would be able to earn at least his pre‑accident earnings. During this period Mr Thompson could seek further qualifications if he so desired. The need to recognise the difficulties an injured worker can have competing for and obtaining suitable employment in the type of circumstances thrown up by this case needs to be reflected by giving sufficient time for retraining and adjustments to those circumstances. Recognition also needs to be given to the fact that even though Mr Thompson has obtained a project management qualification he has only eight years 'hands on' trade experience and due to the incident is unable to gain more experience as a roof carpenter and this will affect his ability to obtain a project manager's role and he may be competing with persons who may not have his history of injury.
Therefore for the period from 1 September 2017 to 1 December 2018, a total of 65 weeks, I allow gross economic loss of 65 x $1,070 = $69,550 or net economic loss of 65 x $863 or $56,095.
Total past loss of earnings
| Past loss of earnings | ||
| 12 August 2014 - 13 October 2016 including Fox v Wood (agreed) | $69,443 | |
| Workers compensation adjustment | $5,995 | |
| 13 October 2016 to 1 September 2017 | $39,698 | |
| 1 September 2017 to 1 December 2018 | $56,095 | |
| Total | $171,231 | |
Interest on past loss of earnings
$95,793 x 3% x 4.36 years
$12,529.72
Past loss of superannuation
Mr Thompson claims past loss of superannuation from 12 August 2014 until 13 October 2016 of $6,049.19. The evidence of both Mr Thompson and Mr O'Regan is that Mr O'Regan was paying Mr Thompson's superannuation. In those circumstances I allow that amount.
I also allow past loss of superannuation from 13 October 2016 until 1 September 2017 calculated on gross earnings of $49,220 and from 1 September 2017 until 1 December 2018 calculated on gross earnings of $69,550 from which results in loss of superannuation of $9,590 ($118,770 gross x 9.5% x 85%) (Jongen v CSR).
I allow total past lost superannuation of $6,049 + $9,590 = $15,639.
Interest on past loss of superannuation
$15,639 x 3 % x 4.36 years = $2,045
Future loss of earning capacity
Consistent with my finding previously expressed I allow future loss of earning capacity from 1 December 2018 until 1 September 2019 of $1,070 gross or $863 net x 39 weeks or $41,730 gross or $33,657 net. The use of the appropriate multiplier for 39 weeks (39) does not alter that figure. I make no deduction for contingencies as future loss of earning capacity is restricted to 39 weeks.
Future Loss of Superannuation
$41,730 x 9.5% x 85% = $3,369
Agreed Special Damages
In relation to past hospital, medical, pharmaceutical and other treatment expenses it is agreed that the sum of $57,209.88 is reasonably paid.
Similarly the $10,322.08 of past vocational rehabilitation expenses have been agreed.
Other special damages
Mr Thompson claims the amount of $1,665.13 for medication attached in the schedule in his updated particulars of claim of 28 September 2018 which I need not reproduce. Of that amount $743.40 has been agreed and the remaining $950 (approximately) relating to medication for depression and anxiety is in dispute.
Dr Gamage's evidence was that Mr Thompson was being treated for issues relating to depression and the like prior to the incident but as a result of the incident his daily dosage had increased and ultimately it was necessary to change to the stronger medication of Pristiq.
At the end of the day I accept the doctor's evidence that it was necessary to increase the dosage and to change at one stage the medication.
The difficulty is that I do not know the cost of the medication that he was previously taking. However, doing the best that I can and accepting that the incident resulted in the medication increasing in frequency and strength. I allow one half of the disputed amount of $950 being $475. Added to the agreed amount of $743, I arrive at a figure of $1,218.
Future expenses
It is agreed that the past and future travel expenses are $500.
As for future medical expenses Mr Thompson's written submissions say that although Dr Slinger's evidence as to the cost of future surgery was $15,000 to $20,000 he claims a discounted amount of $10,000.
In addition Mr Thompson claims a further amount of $400 in relation to replacing the wrist splint.
Mr Hancy points out that Dr Slinger's evidence was that the chance of surgery is 10% to 20% and the surgery would not be required for 20 to 30 years. Using the multiplier for the present value of a sum paid in the future for 20 years and 30 years at both the higher and lower costs results in an award for future surgery in the range of $261 to $1,247 depending on whether of course one uses the 10% or 20% of the chance of surgery being required in either 20 or 30 years.
Using the midpoints of $17,500 and 25 years and a multiplier of .233 is $4,025. The assessment of damages is not just a straight mathematical equation. Surgery will either be required or not and in those circumstances I allow $3,000 and the further amount of $400 in relation to wrist splints totalling $3,400.
General Damages
$45,000.00
Past loss of earning
12 August 2014 - 13 October 2016 including Fox v Wood
Workers compensation adjustment
13 October 2016 - 1 December 2018
$69,443.00
$5,995.00
$95,793.00
Interest on past loss of earnings
$12,529.72
Past loss of superannuation
$15,639.00
Interest on past loss of superannuation
$2,045.00
Future loss of earning
$33,657.00
Future loss of superannuation
$3,369.00
Special damages
Past hospital and medical and pharmaceutical
$57,209.88
Past vocation rehabilitation expenses
$10,322.08
Past medication
$1,218.00
Past and future travel expenses
$500.00
Future medical expenses
$3,400.00
$356,120.00
Accordingly, I assess Mr Thompson's damages at $356,120 and shall hear from the parties as to the orders they seek.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
MO
ASSOCIATE TO JUDGE BOWDEN30 NOVEMBER 2018
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