VWA v Intercon Group Pty Ltd
[2010] VCC 315
•5 March 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES & COMPENSATION
GENERAL DIVISION
Case No. CI-06-00047
| VICTORIAN WORKCOVER AUTHORITY | Plaintiff |
| v | |
| THE INTERCON GROUP PTY LTD | Defendant |
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| JUDGE: | HIS HONOUR JUDGE SACCARDO |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 22, 23, 24, 25 and 26 February 2010 |
| DATE OF JUDGMENT: | 5 March 2010 |
| CASE MAY BE CITED AS: | VWA v Intercon Group Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 315 |
REASONS FOR JUDGMENT
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Catchwords: INDEMNITY – APPORTIONMENT OF CONTRIBUTION – Accident Compensation Act 1985 – indemnity under s.138 of the Act – assessment of contribution of third parties – liability of principal contractor and sub-contractor – vicarious liability of
principal contractor for activity of sub-contractor.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G A Lewis QC with | Thomson Playford Cutlers |
| Ms S Manova | ||
| For the Defendant | Mr J R Moore SC with | Norris Coates |
| Mr A W Middleton | ||
| HIS HONOUR: |
1 In my Reasons for Judgment in the proceedings (“the principal proceedings”) in which Mr Cong Shen Zhang (“Zhang”) sought damages against Golden Tape Constructions Pty Ltd and the Intercon Group Pty Ltd (“Intercon”), I apportioned liability between the defendants as follows:
ƒ Golden Tape Constructions Pty Ltd 40 per cent ƒ Intercon 60 per cent
2 In making this apportionment, I made the following findings with respect to Intercon:
•
Intercon, as the head contractor with respect to the work being undertaken at the building site (the work site) at which Zhang was working when he suffered the injury the subject of this proceeding, undertook exclusive responsibility for the provision of safe scaffolding for all work being done at the site.
•
Given the importance of safe scaffolding in the work being undertaken by Zhang at the time of his injury, which involved working at a height in excess of three metres, the duty owed to Zhang by Intercon was similar in scope to that owed to Zhang by his employer.
•
Mr Paul Campbell (“Campbell”), the site manager for the building works being undertaken by Intercon, had erected a work platform which was unsafe and had effectively acquiesced in and endorsed the use of the platform by Zhang.
•
By reason of an admission made by Intercon, it was liable for any acts or omissions of Campbell.
•
The dangerous situation which arose, by reason of the presence of an unsafe platform, was one created by Campbell, who erected the platform knowing that it was perilously insecure.
•
The presence of this knowledge in Campbell, and the absence of the knowledge in Zhang’s employer, was the critical factor in apportioning greater culpability to Intercon in the cause of Zhang’s accident, in circumstances in which the responsibility of both Intercon and Zhang’s employer for the happening of the accident was broadly equal.
3 In this proceeding, the Victorian WorkCover Authority (“VWA”) seeks from Intercon an indemnity in respect of compensation paid or payable by it to Zhang under the provisions of the Accident Compensation Act 1985, as amended (“the Act”). The proceeding is brought pursuant to the provisions of s.138 of the Act.
4 Intercon, in its Amended Defence dated 22 February 2007, relevantly asserts that if Zhang suffered injury by reason of its negligence, the injury was caused or contributed to by the negligence and/or breach of duty of Trade Contract Management Australia Pty Ltd (“TCMA”) as the employer of Campbell.
5 The issue which arises for my determination in this proceeding is whether, to any and if so what extent, the apportionment of liability for Zhang’s accident which was fixed against Intercon in the principal proceedings, should be reduced to take into account any responsibility in TCMA for the happening of the accident.
6 It follows from my Reasons for Judgment in the principal proceeding that the activities of Campbell, in erecting a work platform which he knew was unsafe and endorsing and encouraging its use by Zhang, were the primary reasons for the apportionment of responsibility against Intercon.
7 In this proceeding, it is asserted by the VWA –
(i) that Intercon was Campbell’s employer; (ii)
that Intercon is estopped from denying the existence of an employment relationship between it and Campbell (the estoppel issue);
(iii)
that in the absence of the existence of an employment relationship between Intercon and Campbell, Intercon owed to Zhang a duty to provide a safe place of work, which duty was breached by Intercon.
8 In response to these allegations, Intercon asserts –
(i) that at all material times TCMA was Campbell’s employer; (ii)
that as the principal contractor with respect to the worksite, it was entitled to rely upon TCMA to provide to it a competent site manager, that it so relied upon TCMA and that any duty of care which it owed to Zhang was discharged by reason of that reliance.
The Estoppel Issue
9 Having regard to the significance of the estoppel issue, I determined the issue by way of a Ruling delivered on 24 February 2010. In that Ruling I found that Intercon was not prevented in this proceeding, either by reason of Issue estoppel or Anshun estoppel, from denying the existence of an employer-employee relationship between it and Campbell and asserting that such a relationship existed between TCMA and Campbell.
The Issue as to the Identity of the Employer of Paul Campbell
10 The evidence relevant to the capacity in which Campbell was working on the building site as at the time of the happening of Zhang’s accident may be summarised as follows:
The evidence of Michael Zemski
11 Mr Michael Zemski (“Zemski”), a director of Intercon, gave evidence in the principal proceeding in which he said:
• Campbell was a sub-contractor for Intercon.[1] •
As site manager, Campbell had total control over what, where and when sub-contractors were doing their work, including dismantling and relocating of scaffolding which was to be used on the site, which activity was to be performed by Campbell.[2]
•
That Zemski’s normal practice was to visit the site on most days and to stay on the site if there was a requirement for him to spend some time there and perhaps give some direction to the site manager.[3]
•
That Zemski did not believe that “Paul Campbell had a specific ticket for scaffolding”.[4]
• That Campbell “became quite proficient at putting the scaffolding [1] Transcript (“T”) 683
[2] Transcript of principal proceedings - T 686
[3] T 689
[4] T 692
together. It’s because of the nature and construction of the scaffold. It’s
not a difficult procedure to put it together”.[5]
[5] T 693
•
That Campbell was in charge of the whole operation on behalf of Intercon, and that his duties involved him in: directing the trades on the site;[6] site supervision for the carpentry labourer as well as the other labourer on site; instructing sub-contractors; providing information to enable them to put prices together; liaising with Zemski as to employment of sub-contractors once prices had been prepared and the distribution of documentation to sub-contractors.[7]
• That Campbell came onto the site as an employee of TCMA.[8] •
That on 20 June 2002, Zemski had written to TCMA terminating the agreement which had previously existed between TCMA and Intercon pursuant to which TCMA had supplied tradesmen (including Campbell) to work at the site.[9]
•
That whilst TCMA provided Intercon with both carpenters and the services of the project manager, Campbell:
(i)
payment for the services of the carpenters and Campbell’s labour was made pursuant to the one contract; and
(ii)
that whilst Campbell’s hourly rate was higher than any other of the staff of TCMA, because of his importance in terms of the role he played on the site, payment was made by Intercon to TCMA by way of a lump sum which would then be distributed by TCMA as it saw fit.[10]
[10] T 723
•
That at the relevant time Intercon was completing two projects on adjoining properties, together with a number of other projects, and that Campbell was allocated the two projects being undertaken on adjoining properties via TCMA.[11]
•
That whilst he could not recall whether he attended the projects at 7 and 9 Marine Parade every day, Zemski’s recollection was that he did numerous site visits during the day to Marine Parade, and that he was always filled in by Campbell as to what the status was. He said however, that by reason of the number of projects which he was managing for Intercon, Zemski was not able to be on site most of the time at Marine Parade, and he basically ran his projects from his office.[12]
•
That subsequent to TCMA being dismissed from the site, Intercon employed Campbell through Campbell’s own company to complete the project.13
•
That upon the engagement of Campbell’s company by Intercon, Campbell remained the site manager of the building site but at that time Campbell took more control of other sub-contractors “because he was
[11] T 723
[12] T 724
[6] T 694
[7] T 722
[8] T 721. Zemski said that TMCA had been employed by Intercon “for carpentry services and project management services. So Campbell was in fact an employee of TCMA at the time I met him”.
[9] T 695-697
now fully employed by me in an all encumbering situation, and that’s how
it remained until the end of the project”.14
• That “prior to TCMA leaving the site, Paul Campbell was the site manager that I paid for through TCMA. Once TCMA left the site, I employed Paul Campbell’s company direct. So during both these phases, Paul Campbell was the site manager, but the payment of his
services was different,” and that during this period “I dealt a lot more with
the two bosses from TCMA, this is my memory, and that Paul was ultimately called in to respond. In other words, Paul was doing the work and informing TCMA, who were his bosses, that this is the work he was
doing”.15
• That Zemski would speak to Campbell on a daily basis, either on the telephone or via a direct site contact. Intercon had a construction program that needed to be adhered to “and a combination of all that gave Paul Campbell the indication as to where we should be going and
what timing was on the project”.16
•
That TCMA had nominated Campbell as their contact because they were not on site on a daily basis. In those circumstances Campbell was given the responsibility when TCMA were commissioned. Zemski was to liaise directly with Campbell. If other issues arose which needed further discussion, he would speak to TCMA.17
The Evidence of Paul Campbell
12 Campbell gave evidence during the principal proceedings that:
•
it was his role as site manager “to run the site in a safe manner, quality and co-ordination of trades (sic)”.18
• Zemski attended the site frequently.19
T 724
T 728
T 730-731
T 731
T 731
T 737
T 759. Campbell said, at T 168 in the recovery proceedings, that Zemski would schedule site meetings roughly weekly and that matters such as site safety and the need for scaffolding would be
13
Campbell was recalled in the course of the present proceeding. In the course of his evidence, he said that:
• The builder originally had a supervisor on site whose name was Greg, and that subsequently Zemski approached Campbell about being site manager.20 • That on 12 April 2002, Campbell commenced working as the site manager for Intercon. • That when he commenced working as a site manager his wages were paid through TCMA, but that company had no involvement in the work he performed for Intercon in respect of which he received ongoing directions and instructions from Zemski.21 • That at the time he commenced working as a site manager he had no previous experience in that occupation, other than that which was involved in running a gang of ten carpenters. He said that the work involved as a site manager was certainly different to that involved in running a gang of carpenters, and that it “was a quick learning curve”.22 • That Zemski made no enquiries of Campbell as to the way in which the scaffolding involved in Zhang’s accident had been erected. • That Campbell had completed his apprenticeship as a carpenter in 1992. That he obtained a certificate of competency in erecting scaffolding during his apprenticeship, and that he had been involved in the erecting
discussed. Insofar as there is any inconsistency between the evidence given by Campbell and that of Zemski as to the regularity with which Zemski attended the site, I prefer the evidence of Zemski. For the reasons which I set out in the Judgment delivered in the principal proceedings, I have concerns as to the reliability of the evidence given by Campbell generally. Whilst the fact that I have rejected some of his evidence does not mean that I should reject all of it, my impression of Zemski, when he gave evidence, was that he readily made admissions against his interests. (See, for example, his evidence at T 692 of the principal proceedings, that he did not believe that Campbell held the relevant certification to erect scaffolding).
Transcript of Section 138 proceedings (”RT”) 166
RT 168
RT 168
and dismantling of scaffolding between 1998 and the time of the happening of the accident. He described the task involved in assembling a mobile scaffold as being pretty basic.[23]
[23] RT 172-173
•
That as at 6 June 2002, he had no reservations as to his competence in erecting and dismantling scaffolding, and that he had never encountered a problem carrying out that activity.[24] He was asked:
[24] RT 174
“Q:
Zemski in evidence in the previous action said that he’d seen your working scaffold and you seemed to know what you were doing, words to that effect?---
A: That’s correct. Q: Would you argue with that? --- A: No.”[25] [25] RT 174
•
That he felt well competent to take on the job as supervisor, and he had no reservations in this regard.[26]
•
That Zemski worked from his office because he had other projects on, and that he turned up on the site weekly or fortnightly “to see the job’s running smoothly, safety, progress payments and also claims”.[27]
[26] RT 175
[27] RT 178
Findings as to whether an Employment Relationship Existed:
(1) Between Campbell and TCMA; (2) Between Campbell and Intercon
(i) Campbell’s employment by TCMA 14
I have summarised in considerable detail the evidence given by Zemski and Campbell which related to the circumstances in which Campbell came onto the site at 8 Marine Parade, and the duties undertaken by both Zemski and Campbell on the site. Given the circumstances of this case, I am satisfied that this is the evidence which is most relevant to the determination of the identity of Campbell’s employer. Whilst in deciding the issue of Campbell’s employment it is appropriate that I take into account the fact that Intercon clearly held Campbell out as its site manager, I consider this issue to be only of marginal significance in an industry in which a site manager might be either a direct employee or the sub-contractor of the head contractor.[28]
15
I am satisfied that the evidence given by Zemski establishes that when Campbell initially came onto the site:
•
He did so as the head carpenter of the gang of carpenters supplied to Intercon by TCMA, and that he was at that time an employee of TCMA;
•
TCMA supplied the services of Campbell and his team of carpenters to Intercon in the course of the operation of the business conducted by TCMA.
16
I further accept the evidence of both Campbell and Zemski that at the time at which Campbell was appointed as site manager his wages were paid by TCMA.[29]
17 Having regard to the fact:
(i)
that TCMA calculated the wage to be paid to Campbell for the work done by him at the building site and paid him for that work;
(ii) at the time at which TCMA were excluded from the site, the prerequisite to Campbell remaining on the site as site manager involved the execution of an agreement between Intercon and Campbell’s company for the provision of his services as site manager,
I am satisfied that at the time of Zhang’s accident Campbell was an employee of TCMA.
(ii) Campbell’s employment by Intercon 18
Notwithstanding the fact that the task undertaken by Campbell as site manager was a task which was new to him, I am satisfied that that task involved special expertise. Campbell described it as involving a “quick learning curve”.[30] It clearly involved activities additional to and outside those previously employed by Campbell when supervising a gang of carpenters.
19
The description of the duties of a site manager as set out by Ian Johnson in paragraph 12 of his report dated 5 December 2009, clearly establishes the complexity of the tasks required to be undertaken in that role and supports the evidence given by Campbell as to the difference between the activities involved in undertaking that role when compared with that of the foreman of a gang of carpenters.
20
I am satisfied that on a day-to-day basis Campbell had considerable autonomy as to the way in which he went about his tasks, and that other than for the structure imposed by the construction program and any instructions given by him to Zemski in the course of site meetings or telephone conversations in which specific issues were raised, Campbell controlled the operations being undertaken at the building site on a daily basis without instruction, direction or intervention from Zemski.
21
There is no evidence one way or the other as to the capacity in which Campbell was held out by Intercon. That he came onto the site as an employee of TCMA however, and that the site involved by and large, activities carried out by sub-contractors to Intercon, does not support the contention that Intercon presented Campbell as being part and parcel of its structure.
22
A further indicia of the fact that Campbell was not an employee of Intercon at the time of Zhang’s accident arises by the circumstances to which I have already referred in which Intercon was required to negotiate with Campbell’s company in order to keep Campbell on site at the time at which its relationship with TCMA broke down.
23
Taking into account the matters to which I have referred above, I am satisfied that Campbell was not an employee of Intercon at any time relevant to the occurrence of Zhang’s injury.
24
As to whether the relationship between Intercon and Campbell could at any relevant time be considered to be one in which Intercon had assumed the duties and obligations attendant to the relationship of employer and employee:
(i)
There is no evidence that the prerequisites for the existence of an employment relationship pro hac vice existed - see Deutz Australia Pty Ltd v Skilled Engineering;[31]
(ii)
In my opinion the evidence does not establish that the circumstances of Campbell’s relationship with Intercon were such that Intercon exercised the requisite degree of control and management over the activities undertaken by Campbell on the building site, such that it could be asserted that Intercon owed to Campbell a duty of care of the type owed by an employer to an employee as was found to exist in TNT Australia Pty Ltd v Christie & Ors.[32]
[31] [2001] VSC 194
[32] (2003) 65 NSWLR 1
[28] This evidence is consistent with that given by Campbell and is not the real subject of dispute.
[29] There is no real dispute in respect of this evidence.
[30] RT 168
The Vicarious Liability of:
(i) TCMA;
(ii) Intercon –
for the actions of Campbell
25 It is clear that an employer is vicariously liable for acts or omissions of its employees. A person engaging an independent contractor however will not generally be vicariously liable for the acts of the contractor: see Sweeney v Boylan Nominees Pty Ltd.[33]
[33]
26 In Colonial Mutual Life Assurance Society Ltd v Producers & Citizens Co- operative Assurance Co of Australia Ltd,[34] the High Court recognised the vicarious liability of a principal in respect of statements made by its agent.
[34] (2006) 226 CLR 161, at paragraph 12
27 In Sweeney v Boylan Nominees Pty Ltd,[35] the High Court was careful to stress the limited applicability of the decision in Colonial Mutual Life, commenting:
“… the distinction between independent contractors and employees has been critical to the definition of the ambit of vicarious liability. The view, sometimes expressed, that the distinction should be abandoned in favour of a wider principle, has not commanded the assent of a majority of this Court.
. . .
In Scott,[36] the majority of the Court rejected the contention that the owner of an aircraft was vicariously liable for the negligence of the pilot of that aircraft if the pilot operated the aircraft with the owner's consent and for a purpose in which the owner had some concern. The argument that ‘a new species of actor, one who is not an employee, nor an independent contractor, but an 'agent' in a non-technical sense’ should be identified as relevant to determining vicarious liability was rejected. …”[37]
[35] (1931) 46 CLR 41
[36] (supra)
[37] (2000) 204 CLR 333
28 In the present case I am satisfied that the relationship between Intercon and Campbell was not one of principal and agent in the way identified by the Court in Colonial Mutual Life[38]and accordingly, I am satisfied that whilst TCMA was vicariously liable for the acts and omissions of Campbell (its employee), Intercon was not vicariously liable for the actions of Campbell (its sub- contractor).
[38] (supra)
29 It follows that at all material times TCMA was vicariously liable for the acts and omissions of Campbell which I have found to be responsible both in a causative and culpable sense for the injuries suffered by Zhang, and that Intercon was not so liable.
Findings as to whether the engagement by Intercon of Campbell, through
TCMA, discharged the duty of care owed by Intercon to Zhang30 For the reasons earlier outlined, I am satisfied that it is appropriate to regard the relationship which existed between Intercon and Campbell as that of principal contractor and sub-contractor. It is submitted on behalf of Intercon that in those circumstances Intercom was entitled to rely completely upon the expertise of Campbell in managing the building site,[39] and that any duty of care which it owed to Zhang to provide safe premises for his use was complied with by its employment of Campbell.
[39] Including the obligation which Intercon had assumed to undertake all erection and dismantling of scaffolding to be used on the site.
31 In Stevens v Brodribb Sawmilling Co Pty Ltd,[40] the High Court recognised the existence of a duty on the part of an entrepreneur to employ reasonable care in organising activities undertaken by it to avoid unnecessary risks of injury and to minimise other risks of injury. Whilst the Court found that this duty did not import a duty to retain control of working systems if it was reasonable to engage the services of independent contractors who were competent themselves to control their systems of work without supervision, the qualification which the Court imposed upon the absence of a duty to control working systems,[41] makes it clear that circumstances may exist in which it is necessary for the entrepreneur to retain and exercise some supervisory function over an independent contractor employed by it.
[40] (1986) 160 CLR 16
[41] Namely, the employment of independent contractors who were competent themselves to control their system of work without supervision.
32 In Leighton Contractors Pty Ltd v Fox,[42] the High Court endorsed the approach taken in Stevens, to which I have referred. In that case, the Court found that whilst the principal contractor of a building site owed a duty to persons coming onto the site to use reasonable care to avoid physical injury to them, the content of that duty did not extend to the supervision of the activities of contractors undertaking specialist tasks in respect of which the principal contractor was unlikely to possess detailed knowledge of the safe work methods relevant to the task being undertaken by such specialist contractors.
[42] (2009) 83 ALJR 1086
33 I do not consider that the tasks involved in the duties of site manager of a building site are such as can be reasonably described as involving activities in respect of which Intercon was unlikely to possess “detailed knowledge” of the work methods required to perform those activities safely. This is particularly so having regard to the fact that the relevant activity involved in causing Zhang’s injury was the provision of safe scaffolding.
34 Further, I do not consider that in the circumstances of the present case,[43] it could be said that Intercon could reasonably have been satisfied that it had, by employing Campbell, engaged a sub-contractor who was necessarily competent to manage the duties involved in the role of site manager.
[43] In this respect, I am specifically referring to Campbell’s total lack of previous experience in undertaking the duties of a site manager
35 Upon this issue I accept the evidence of Ian Johnson (“Johnson”) that reasonable practice required Intercon, after appointing Campbell, to satisfy itself that Campbell was competently performing the duties of site manager by:
[44] RT 142-150
• supervising Campbell closely for the period of at least some weeks immediately after he assumed that role, and • thereafter visiting the site regularly for the purpose of ensuring that Campbell was carrying out his duties in a safe and proper manner.[44] 36 The question as to whether a principal contractor has satisfied the duty of care owed to users of a building site[45] by providing adequate supervision of the activities of its sub-contractors is one which must be considered in the context of the circumstances pertaining to each particular case.
[45] In this case, relevantly owed by Intercon to provide safe premises for the performance of the work undertaken by Zhang.
37 Whilst it was Johnson’s evidence that his own practice would have been to visit this building site on a daily basis, he did not express that opinion as one which would be universally held in the building industry.[46]
[46] RT 149
38 Taking into account the fact that:
(i)
Zemski had had the opportunity to observe Campbell’s management skills whilst Campbell was on site and managing his team of carpenters, and that he obviously considered Campbell to be competent to undertake the role of site manager;
(ii)
there is no evidence to support the proposition that, prior to the happening of Zhang’s accident, the way in which Campbell was managing the building site was such that it should have raised a concern in Zemski as to Campbell’s competence or practices when it came to the erection of, and use of scaffolding at the site;
and balancing these facts against the fact that:
(iii)
Intercon assumed the responsibility for the erection and dismantling of all scaffolding to be used on the building site, and Zemski placed Campbell in charge of the erection and dismantling that scaffolding in circumstances in which he was unaware whether Campbell was the holder of a certificate of competency with respect to scaffolding;
(iv)
Zemski was or should have been aware that this was the first occasion upon which Campbell had ever undertaken the duties of a site manager;
(v)
Zhang was a member of a plastering team which spoke no English,[47] and that in these circumstances:
[47] T 688. The evidence as to the precise time at which Zemski acquired this knowledge is unclear. Zemski said that he would have been notified by Campbell when the plasterers had arrived on site, and that he did become aware at some stage that the plasterers spoke no English. Campbell said that he was surprised to discover, when the plasterers arrived on site, that the members of the plastering team spoke no English and that this caused a two-hour delay in their induction as Mr Xu
ƒ Campbell’s ability to instruct the plastering team as to the use of
the scaffolding was limited;ƒ The ability of the plastering team to voice concerns as to, or
requests for the provision of scaffolding was limited.
(vi) That the plasterers were clearly required to work at a height at which the safe use of scaffolding was essential
I am of the opinion, that the circumstances which pertained at the building site imposed upon Intercon a duty to provide appropriate supervision of the building site to ensure that safe work practices were being employed on the site.48
39 Whilst, in the absence of any complaints as to safety issues, I do not consider that Zemski had a duty to remain constantly on the site or to conduct safety checks on a daily basis, the evidence of Johnson to which I have previously referred, satisfies me that the degree of monitoring of the site which should have been undertaken by Zemski was such that it required him at least to walk through the site on a regular basis for the purpose of satisfying himself that safe work practices were being employed, and that he should have visited the work place of Zhang and his fellow plasterers soon after their arrival on site.
had to be sent for to act as an interpreter (T 739). Having regard to the evidence of Zemski that he spoke to Campbell daily (T 731), I am led to the view that it is likely that the language problems of the plastering team would have been raised by Campbell with Zemski sooner rather that later. Further, when account is taken of the fact that following Zhang’s accident none of the members of the plastering team returned to the site, I am satisfied that Zemski became aware of the difficulty in communicating with the plastering team prior to the happening of Zhang’s accident.
Independently of any finding that Zemski was aware of the difficulty in communicating with the plastering team, I am satisfied, having regard to the total inexperience of Campbell as site manager, and the assignment to him of complete control of the erection and dismantling of scaffolding and all safety issues on the site by Zemski in circumstances in which he was not aware whether Campbell held the relevant certificate of competency with respect to the erection of the scaffolding, that the appointment of Campbell as site manager did not discharge Intercon’s duty of care.
40
In the course of my Reasons for Judgment I found that for Zhang, who was an illiterate, uneducated Chinese immigrant; the dangers associated with the working platform constructed for his use by Campbell were such that it was not unreasonable that Zhang did not identify them before the happening of the accident. I am satisfied however that those dangers would have been readily recognisable to a competent builder such as Zemski.[49]
41
In the circumstances, had Zemski seen the platform before Zhang’s accident, I am satisfied that he would have queried the purpose of the platform and should have issued a direction that it was not to be used as a means of accessing the wall adjacent to the void.
42
Zhang was on site for four days prior to the happening of the accident. Throughout that period the platform erected by Campbell was located in the position it occupied at the time of Zhang’s accident. I am of the opinion that Zemski should have performed at least one site inspection of the area in which Zhang was working during that period. It follows from my findings that Zemski should have become aware of the existence of the platform prior to the accident and that he should have directed that the platform be removed. The end result of a system of proper supervision of the building site by Zemski would thus have been the avoidance of the accident.
[49] In this regard, the construction of the platform which:
Finding as to Apportionment
43
In assessing the respective liability of Intercon and TCMA, judged in terms of both the culpability and relative importance of their respective acts and omissions, I adopt the identical approach to that which I applied in deciding the issue of apportionment in the principal proceeding. Adopting that approach, I am of the opinion that TCMA bears the major liability or the happening of Zhang’s accident by reason of its vicarious liability for the acts and omissions of Campbell.
44
Whilst the failure by Intercon to adequately inspect the site, to detect the erection of the work platform and to have it removed were, in my opinion, significant failures which were directly causative of the injury to Zhang, and at this level the causal potency of both Intercon and TCMA for the happening of the accident is broadly equal; the culpability of Intercon is significantly less than that of TCMA which, through its employee Campbell, not only erected a platform which it well knew to be unsafe but also actively encouraged Zhang to use it.
45
In the circumstances, I consider it appropriate to make the following finding of apportionment between Intercon and TCMA with respect to Zhang’s injury, loss and damage:
TCMA 65 per cent Intercon 35 per cent.
46 In making this finding I am significantly influenced, as I was in the principal proceedings, by the endorsement and encouragement by Campbell of the use of the platform in the presence of actual knowledge on his part as to its precarious nature, which factors are not present in the circumstances which I have found to constitute the breach by Intercon of its duty of care to Zhang.
47 The making of this apportionment would result in the apportionment between all parties responsible for Zhang’s injury loss and damage as follows:
Golden Tape 40 per cent TCMA 39 per cent Intercon 21 per cent.
Factor A Calculation
48 The items agreed by the parties with respect to the Factor A calculations are as follows:
General damages $275,000.00 Past economic loss $311,986.00 Past medical expenses $56,495.30
49 My findings with respect to the remaining damages, which are the subject of dispute, are as follows:
Future Economic Loss
50 In assessing the damages awarded to Zhang for future economic loss, I fixed the applicable weekly earnings at $806 per week to which I applied a 15 per cent discount to take into account the vicissitudes of life.
51 Since the trial, Zhang has suffered what was described by Dr Thomas Nye, his treating general practitioner,[50] as “a rather major myocardial infarction in September 2009”.
[50] Report dated 20 February 2001
52 In applying a 15 per cent discount to the damages awarded to Zhang in respect of his future loss of earning capacity, I did not take into account the presence of any heart condition which may have impacted upon his ability to undertake the heavy physical work involved in his occupation as a self- employed plasterer.
53 The occurrence of Zhang’s myocardial infarction warrants a greater discount than 15 per cent, being applied to the damages awarded with respect to Zhang’s future economic loss. It is submitted on behalf of Intercon that a discount of 20 per cent should be applied to this aspect of Zhang’s damages, and for the reasons set out above, I accept that submission.
54 In these circumstances, I calculate Zhang’s future economic loss as follows:
$806 per week multiplied by 598.2
(the 3 per cent multiplier) $482,149.00 Discounted by 20 per cent for vicissitudes -$96,429.80 _________
$385,719.20
Plus Incolink benefits $ 12,870.00 Plus future loss of superannuation $ 34,714.74
___________
Total: $433,303.94 ==========
Past Griffiths v Kerkemeyer Damages
55 It is accepted that the figure of $8,580 represents appropriate compensation under this head of damages in relation to the twenty-six weeks immediately following Zhang’s discharge from hospital.
56 Between June 2003 and the present date, it was Zhang’s evidence that his friends had assisted him in mowing his lawns on a very irregular basis; that he was assisted by his friends in maintaining his house, in that they performed duties including vacuuming and cleaning the bathroom; that he had hired someone to assist him in cleaning his house on two occasions and that the work which was done on those occasions occupied a whole day. I found the evidence adduced by the VWA on this issue to be extremely vague. Whilst I am satisfied that the VWA has established that a modest allowance should be made with respect to Griffiths v Kerkemeyer[51] damages during the period between June 2003 and the present date, the evidence does not satisfy me that Zhang has received the benefit of voluntary services to make up for the capacity which he has lost to provide those services for himself, other than on a very irregular basis.
[51] Griffiths v Kerkemeyer (1977) 139 CLR 161
57 In the circumstances, I consider that it is appropriate to take a broad brush approach to the assessment of Griffiths v Kerkemeyer damages during this period and I fix the sum of $2,500 as the value of Zhang’s entitlement to Griffiths v Kerkemeyer damages between June 2003 and the present date.
Future Griffiths v Kerkemeyer Damages
58 Notwithstanding the evidence given by Zhang that prior to the accident he would spend at least ten hours per week doing things around the house, including cooking, cleaning and maintenance, the quantum of any future Griffiths v Kerkemeyer damages to be allowed in the proceeding must be determined according to Zhang’s need for such services by reason of his disability, when considered in the context of the likelihood that such services will be provided to him either gratuitously or by reason of a commercial arrangement.
59 It is accepted by the parties that an occupational therapist has assessed Zhang’s future needs in and around his house as involving the requirement for services of five-and-a-half hours per week. Given the level of Zhang’s disability, I am satisfied as to the reasonableness of this assessment. Zhang’s history to date as to the employment of such services is such that it is in my opinion unlikely that he will avail himself of the level of assistance which he requires.
60 If Zhang’s claim with respect to future Griffiths v Kirkemeyer care is costed on the basis of the need identified by the occupational therapist for the full term of his life, a claim in respect of future Griffiths v Kirkemeyer expenses in the sum of $157,865 is generated. In my opinion, this figure is unrealistic for two reasons:
(i)
Firstly, I am not satisfied that Zhang will necessarily make use of the assistance which he requires having regard to his history to date with respect to the employment of voluntary or other services;
(ii)
Secondly, independently of his accident, as Zhang’s age advanced, it is likely that his capacities would have diminished even in the absence of his injury and that he would at some stage in his life have required some assistance to undertake the tasks in respect of which he is presently incapacitated.
(i) Having regard to the general unsatisfactory nature of the evidence with respect to this aspect of Zhang’s claim, I consider it appropriate to allow Zhang 50 per cent of the sum which has been claimed by the VWA with respect to future Griffiths v Kerkemeyer care.
(ii) Accordingly, I fix the VWA’s entitlement to future Griffiths v Kirkemeyer expenses in the sum of $78,932.74.
Future Medical Expenses
61 There is no issue that during the past twelve months, the VWA has paid an average of $33.64 per week with respect to Zhang’s medical expenses. In addition, Zhang has incurred the sum of approximately $5.50 per week in respect of medications not reimbursed to him. I consider this history as providing a reliable basis upon which to fix the cost of future medical expenses in this proceeding.
62 Applying the appropriate multiplier to these expenses for the term of Zhang’s life and discounting that figure by 15 per cent to take into account vicissitudes, a present day loss of $37,200 is generated. I consider this to be an appropriate assessment of Zhang’s claim with respect to future medical expenses.
Future Medical Equipment
63 A claim is made by the VWA with respect to the cost of Zhang’s orthotic shoes. Again, the evidence with respect to this claim is generally unsatisfactory. Whilst I accept that Zhang requires the shoes in respect of which he has given evidence, the cost of these shoes needs to be offset against the cost of shoes which Zhang would otherwise have purchased but for his injury. Further, the evidence as to the cost of Zhang’s orthotic shoes and their lifespan is extremely vague. In the circumstances I am not satisfied that the VWA has established its entitlement to an award of damages with respect to the future cost of this item.
Crutches
64 In the absence of any evidence as to the cost of crutches provided to Zhang, or the lifespan of such crutches, I do not consider it appropriate to make an award of damages with respect to the future replacement cost of that item.
Interest
65 I have made no allowance for interest in my calculations and will hear submissions from the parties as the amount of any interest to which the VWA may be entitled in this proceeding.
Conclusion
Subject to the award of interest, I assess the Factor A calculation in this claim as follows:
General damages $275,000.00 Past economic loss $311,986.00 Past medical expenses $56,495.30 Future economic loss $433,303.94 Past Griffiths v Kirkemeyer damages: - 26 weeks post discharge from hospital $8,580.00 - June 2003 to present date $2,500.00 Future Griffiths v Kirkemeyer damages $78,932.74 Future medical expenses $37,200.00 ___________
$1,203,997.98
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66 I will hear submissions from the parties as to any award which should be made as to interest, the precise terms of the orders which are sought in the proceedings and also upon the issue of costs.
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[28]
(i) failed to make use of mobile scaffolding; and
(ii) did not contain any guard rails
was, in my opinion, such that it would immediately raise concerns in the mind of a competent builder if
it had been observed.
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