Wharekawa v AEA Constructions Pty Ltd; Building Partners Pty Ltd v AEA Constructions Pty Ltd - [2018] NSWSC 684

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Wharekawa v AEA Constructions Pty Ltd; Building Partners Pty Ltd v AEA Constructions Pty Ltd [2018] NSWSC 684
Hearing dates: 6-14 November 2017, 16 November 2017, 8 December 2017
Date of orders: 22 May 2018
Decision date: 17 May 2018
Jurisdiction: Common Law
Before: Fagan J
Decision:
The orders of the Court in proceedings no 2015/111482 are:

1. The orders pronounced 17 May 2018 are vacated and the following orders are made in lieu.

2. Judgment for the plaintiff, Raymond Wharekawa, against the defendant, AEA Constructions Pty Ltd for $1,486,783.

3. The defendant, AEA Constructions Pty Ltd, is to pay the costs of the plaintiff.

4. Any application by the plaintiff, Raymond Wharekawa, with respect to the scale at which costs are to be paid under the costs order in his favour is to be made by notice of motion to be filed within seven days with a supporting affidavit and any written submissions.

5. The defendant is to file any affidavit and/or submissions in response within a further 14 days.

6. Upon AEA Constructions Pty Ltd filing its affidavit and any submissions in response to such applications with respect to costs, it is to notify the associate to Fagan J if it wishes to be heard in oral argument in opposition to the orders sought.

The orders of the Court in proceedings no 2016/129877 are:

1. The orders pronounced 17 May 2018 are vacated and the following orders are made in lieu.

2. Judgment for the plaintiff, Building Partners Pty Ltd, against the defendant, AEA Constructions Pty Ltd for $433,084.66, being made up of recovery pursuant to s 151Z of the Workers Compensation Act 1987 (NSW) in the sum of $365,085.66, plus interest in the sum of $67,999, on payments of workers compensation.

3. Noted that payment by the defendant, AEA Constructions Pty Ltd, of the judgment in order 2 above will operate as a credit in the sum of $365,085.66 against the judgment in favour of the plaintiff, Raymond Wharekawa under order 2 made this day in proceedings no 2015/111482.

4. The defendant, AEA Constructions Pty Ltd is to pay the costs of the plaintiff Building Partners Pty Ltd, of the proceedings.

5. Any application by Building Partners Pty Ltd with respect to the scale at which costs are to be paid under the costs orders in their favour is to be made by notice of motion to be filed within seven days with a supporting affidavit and any written submissions.

6. AEA Constructions Pty Ltd is to file any affidavit and/or submissions in response within a further 14 days.
7. Upon AEA Constructions Pty Ltd filing its affidavit and any submissions in response to such applications with respect to costs, it is to notify the associate to Fagan J if it wishes to be heard in oral argument in opposition to the orders sought.
Catchwords: TORTS – negligence – personal injury – plaintiff struck by nail from nail gun fired through wall at construction site – no warning given prior to shot – whether risk “not insignificant” within meaning of Civil Liability Act 2002 (NSW) (“CLA”), s 5B(1)(f) – whether risk “obvious” within meaning of CLA, s 5F – scope of exemption from duty to warn of obvious risk under CLA, s 5H – whether risk “inherent” within meaning of CLA, s 5I – whether plaintiff contributorily negligent – whether breach of duty by employer in failing to warn plaintiff – whether injury and incapacity to work would have materialised due to pre-existing conditions in any event – judgment for plaintiff
Legislation Cited: Civil Liability Act 2002 (NSW)
Evidence Act 1995 (NSW)
Superannuation Guarantee (Administration) Act 1992 (Cth)
Workers Compensation Act 1987 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420; [2009] HCA 48
Angel v Hawkesbury City Council [2008] NSWCA 130; (2008) Aust Torts Reports 81-955
Cox v Fellows [2013] NSWCA 206
Fox v Wood (1981) 148 CLR 438; [1981] HCA 41
Garzo v Liverpool/Campbelltown Christian School [2012] NSWCA 151
Glad Retail Cleaning Pty Ltd v Alvarenga (2013) 86 NSWLR 191; [2013] NSWCA 482
Grills v Leighton Contractors Pty Ltd [2015] NSWCA 72
Kondis v State Transport Authority (1984) 154 CLR 672; [1984] HCA 61
Kwanchi Pty Ltd v Kocsis (1996) 40 NSWLR 270
Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20
Metro North Hospital and Health Service v Pierce [2018] NSWCA 11
Najdovski v Crnojlovic (2008) 72 NSWLR 728; [2008] NSWCA 175
Neindorf v Junkovic (2005) 80 ALJR 341; [2005] HCA 75
Purkess v Crittenden (1965) 114 CLR 164; [1965] HCA 34
Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330; [2007] HCA 42
Seltsam Pty Limited v Ghaleb [2005] NSWCA 208
Shaw v Thomas [2010] NSWCA 169
Vairy v Wyong Shire Council [2005] HCA 62
Watts v Rake (1960) 108 CLR 158; [1960] HCA 58
Wyong Shire Council v Shirt (1979) 146 CLR 40; [1980] HCA 12
Texts Cited: Mr D Villa, Annotated Civil Liability Act 2002 (NSW), 3rd Ed, Lawbook Co, Sydney, 2018
Category: Principal judgment
Parties: Raymond Wharekawa (plaintiff)
AEA Constructions Pty Ltd (first defendant/cross-claimant)
Building Partners Pty Ltd (plaintiff/cross-defendant)
Representation:
Counsel:
Mr David Higgs SC/Mr David Campbell SC/Mr Andrew Davis (plaintiff, Wharekawa)
Mr Morris SC/Mr John Catsanos (plaintiff/cross-defendant, Building Partners)
Mr John Maconachie QC/Mr Mitchell Davis (first defendant/cross-claimant)
Solicitors:
Leslie Heinrich, RMB Lawyers (plaintiff, Wharekawa)
Stephen Lee, Stephen Lee Legal (plaintiff/cross-defendant, Building Partners)
Bryan McMahon, McMahons Lawyers (defendant)

File Number(s): 2015/111482; 2016/129877

Judgment

On 9 November 2012 the plaintiff, Raymond Wharekawa, was working as a builder’s labourer in a terrace house at No 42 Windsor Street, Paddington, when a nail fired from an explosive powered tool on the adjoining property (No 40) struck him in the left temple. He was 28 years of age. The workman who fired the nail gun was Mr Ian Box (since deceased). Mr Box was employed by AEA Constructions Pty Ltd (AEA). The plaintiff claims that his injuries from the accident have prevented him from returning to work as a builder’s labourer. He has brought an action against AEA for damages in negligence. AEA denies that it was negligent and disputes the extent of the plaintiff’s resulting injuries. It also contends that the plaintiff was contributorily negligent and/or that he was injured solely through the negligent fault of his own employer. As the plaintiff was not engaged by AEA his claim against it is governed by the Civil Liability Act 2002 (NSW), including the regime under that Act for assessment of damages.
At the time of the accident the plaintiff was employed by Building Partners Pty Ltd (the employer). In that employment he was engaged upon an extensive renovation of the terrace house at No 42. Under the Workers Compensation Act 1987 (NSW) the plaintiff has been paid benefits by the employer. The employer has brought a separate proceeding against AEA alleging that the plaintiff’s injuries were caused by the negligence of AEA through its employee Mr Box and claiming indemnity under s 151Z(1)(d) of the Workers Compensation Act for such compensation as the employer has paid to the plaintiff.
By way of defence to the employer’s action AEA both denies negligence and repeats its assertion that the sole cause of injury to the plaintiff was his own contributory negligence and/or negligence of the employer. The allegation of negligence on the part of the employer is particularised as failure to identify the hazard arising from AEA’s use of the explosive powered nail gun on its site adjoining the employer’s building site and failure to take reasonable steps to eliminate or minimise any risk to the plaintiff arising therefrom. AEA claims indemnity from the employer in respect of any damages awarded against it in favour of the plaintiff.
The plaintiff’s action against AEA, the employer’s action against AEA and AEA’s cross-claim against the employer have been heard together. Evidence in each proceeding has been received as evidence on all matters in dispute. In each proceeding AEA takes issue with the extent of the plaintiff’s injury and ongoing disability as a result of the nail gun accident.

Circumstances of the accident

I base my findings about the circumstances in which the accident occurred upon written statements and oral evidence of the plaintiff, of Mr Craig Anderson (the site foreman to whom the plaintiff was responsible at No 42) and of Messrs George, Damien and Anthony Alexiou (three brothers who were principals of AEA). I have also relied upon photographs and sketches of the scene of the accident and an email from the late Mr Box to Messrs Alexiou dated 13 November 2012. This was received under s 67 of the Evidence Act 1995 (NSW). A report of Dr Buckland, an expert in the construction industry, is also relevant.
Numbers 40 and 42 are adjacent properties on the north side of Windsor Street, with their frontages facing south. Number 40 is to the west and No 42 to the east. The residences on each are constructed close to the street frontage. The renovations being carried out on both properties in November 2012 involved demolition of structures and excavation at the rear (north) to permit construction of a garage on each property.
On 9 November 2012, from a position at the rear of No 42, Mr Anderson was able to look across the rear of No 40 and observe, on the far side of that property, a common wall between No 40 and No 38. Prior to 1:30 pm on that day Mr Anderson observed employees of AEA affixing plastic sheeting to that common wall, apparently in an endeavour to weatherproof it temporarily. As they performed this work Mr Anderson “heard the charges of a power charged nail gun”. The plaintiff also heard these shots and was aware that they were associated with the temporary weatherproofing of the No 38/No 40 common wall, at the rear of those properties.
From about 1:30 pm on 9 November 2012 there was a heavy fall of rain which caused the workmen at No 42, including the plaintiff, to remove power tools and electric extension leads from around the site and place them under cover. The rain lasted for about half an hour. After this the plaintiff, instructed by Mr Anderson, commenced to re-lay the extension leads and to re-position the power tools for resumption of work. For this purpose he was at the rear or northern end of the remaining house structure at No 42. He was on the eastern side of the property furthest away from No 40 and near to a stairway leading to an upper level.
The party wall between Nos 40 and 42 was of double brick construction without a cavity, 230 mm thick. In every fifth course the bricks were laid at right angles to the alignment of the wall, forming a bond between the two single brick component walls. This double brick wall had been constructed in the mid to late 1800s. The bricks were of a material known as sandstock which is “quite soft”. They had been laid with limestone mortar, which is “very soft” and has a propensity to crumble.
The rear wall of No 40 was at the same distance back from the street frontage as the rear wall of No 42. On the No 40 side there was a window opening in the rear wall, adjacent and at right angles to the common wall with No 42. On 9 November 2012 Mr Box closed off this window opening with a sheet of plywood. In order to hold the plywood in place he affixed two wooden blocks or cleats to the party wall with No 42. According to his email to Messrs Alexiou of 13 November 2012, he fixed the lower block with two 75 mm nails fired from a Ramset explosive powered nail gun. These nails were driven through the timber block into the party wall on the No 40 side, fired perpendicular to the wall in the direction of No 42. He then fixed the upper block in the same manner. That is, using two more 75 mm nails fired from the gun.
Nails may be fired with a nail gun of the type operated by Mr Box using charges of greater or less explosive power. The charges are colour coded in nine grades, from grey (minimum) to black (maximum). Yellow is in the middle of the range. According to his email Mr Box used yellow charges for the four fixings, two in each block, as described above. He reported in the email that the two blocks were effectively secured by these four shots, without incident and in particular without excessive penetration of the wall. He decided to fire a third nail into the upper block and for this he again used a yellow charge. I find that this was the nail which penetrated the 25 mm timber block and the double brick wall and travelled another 2.5 m across the rear of No 42 to strike the plaintiff in the left temple.
The plaintiff gave evidence that he did not hear the use of an explosive powered nail gun on the adjoining site, No 40, in the period immediately prior to being struck by the nail in question. Other evidence shows that the sound of Mr Box’s first four shots, through the timber blocks and into the party wall, would have been audible at least on some parts of No 42. Mr Box’s email does not expressly state when he fired the fifth nail relative to the firing of the earlier four. I infer that the fifth nail was fired soon after the fourth, within some minutes. Mr Box did not explain in his email why the fifth nail was fired having regard to the successful fixing of the upper timber block by the third and fourth shots.

The plaintiff’s injuries and treatment

In oral evidence the plaintiff described the effect of the nail impact to his temple as being similar to being hit in the head by a bat. He had been bending down at the waist and was straightening up when the nail struck. The impact jerked his head to the right. He grasped the vertical support of the stair rail, near to which he was standing, and steadied himself. He was not knocked to the ground. He cried out in pain and Mr Anderson came straight to his assistance. The nail was embedded in and protruding from his temple. He was helped to the ground where he lay until paramedics arrived. The plaintiff was “ambulant with assistance” and was conveyed to hospital in a seated position in the ambulance. On the way he was treated with morphine to relieve pain at the site of the injury.
Upon admission to the Emergency Department at St Vincent’s Hospital in Darlinghurst at 2:43 pm the plaintiff was assessed for signs or symptoms of brain or other neurological damage. Radiological studies of his head and neck were performed. These showed that a depressed fracture of the skull had been sustained. The bone in the vicinity of his temple had been displaced approximately 5 mm inwards. The nail had penetrated approximately half the thickness of his skull. No damage to the functional tissue of the brain was detected. The dura was not penetrated. There was no intracranial haemorrhage or brain contusion. These radiological results satisfied the on-duty neurosurgeon and neurological registrar that it was safe to remove the nail under local anaesthetic. That was done at 4:30 pm.
The plaintiff complained of continuing headache after the nail had been removed. He was taken from theatre to the Intensive Care Unit (ICU). Twenty-four hours after his admission to the hospital, upon mobilisation of the plaintiff to assess him for discharge, he displayed signs of neurological damage. His gait was ataxic and control and power of his lower limbs was diminished. Further radiological examination of his cervical spine was undertaken to try to find the cause of these symptoms.
A computed tomography (CT) scan on 12 November 2012 showed the plaintiff had a “broad based disc bulge at C3/C4” and that the disc was touching the thecal sac (the membrane which surrounds and encases the spinal cord). Magnetic resonance imaging (MRI) of the cervical spine on 13 November 2012 revealed that the facet joints between the C3 and C4 vertebrae (being synovial joints surrounded by a fibrous membrane or capsule) exhibited osteophyte development (bony growth) and hypertrophy (swelling of the joint capsules). The disc and facet joint pathology at the C3/C4 level was attributable to degeneration which predated the nail impact.
The MRI of 13 November 2012 further showed that the bulging disc was “causing moderate central canal stenosis and mild cord compression” at C3/C4. That is, the central passage through the vertebrae was narrowed by the disc. There was evidence on the MRI scan of oedema (fluid accumulation) or myelomalacia (disorder of white matter, being nerve fibres) in the spinal cord, indicative that compression contact had occurred.
The plaintiff remained in the ICU until 15 November 2012. During that period his headache continued. He was then transferred from ICU to the Sacred Heart rehabilitation facility and remained an inpatient there until 21 November 2012. During the next year he suffered recurring migraine, impairment of balance and reduced control over his lower limbs. By August 2013 Dr Winder (his treating neurological surgeon) had concluded that the plaintiff was at risk of suffering further severe damage to his spinal cord at the C3/C4 level. He recommended an operation to fuse these vertebrae. That was carried out by Dr Winder on 25 November 2013.
It is the plaintiff’s case that he continues to suffer recurrent migraine and diminished control over his lower limbs since the operation. AEA disputes the severity and frequency of the continuing migraine symptoms and disputes altogether the alleged ongoing neurological deficit in the lower limbs. AEA denies that such symptoms as have continued after the spinal fusion are attributable to the nail gun accident. It further contends that whatever lasting consequences there may have been from the accident and/or the operation, the plaintiff would have incurred them sooner or later in any event because of the pre-existing degeneration in his cervical spine.
The issues concerning ongoing disability and causation thereof will require closer analysis of the progression of the plaintiff’s symptoms and of his treatment, rehabilitation and recovery later in these reasons.

Duty of care owed by AEA and breach

The plaintiff’s claim is pleaded solely as a breach of duty owed to him directly by AEA itself. He does not in terms allege vicarious liability of the company for breach of a duty owed by its employee Mr Box. The Ramset explosive powered nail gun being operated by Mr Box, when used with the yellow grade charges which he had selected, was capable of firing nails through solid materials such as timber and into, if not through, still more dense materials such as masonry. Mr Box knew that. At the latest, by the time he came to fire the shot which caused the plaintiff’s injury he knew that the tool used in conjunction with a yellow charge had the capacity to penetrate bricks. This was evident to him from the results of the four shots by which the two timber blocks had been affixed to the party wall.
Mr Box had operated this tool regularly over nine years of employment with AEA. From this I infer the capacity of the device was well known to Mr Box even before he fired the first four shots which fixed the timber blocks. His knowledge is attributable to AEA. AEA was also aware through its principals, Messrs Alexandriou, that an explosive powered nail gun was in use on the site and it ought reasonably to have known of the penetrative capacity of nails fired by this tool using yellow charges.
Self-evidently, as the gun used in conjunction with yellow charges could drive a nail into timber and brick, should a nail be fired into materials of insufficient density and resistance to stop the nail, it could travel at significant velocity through the air. Again self-evidently, a nail so fired could cause physical harm to any person in its path. I have recorded above at [9] my findings that the party wall was constructed of low density masonry, incorporating mortar joints of still lower density. I infer that AEA knew this through Mr Box, he having worked at the surface of the party wall on the No 40 side. As the photographs in Exhibit C reveal, the party wall had no render over the brickwork on the No 40 side. Even if Mr Box had not in fact appreciated the low density and uneven quality of the wall, he (and AEA) ought reasonably to have known of this. I infer from the evidence of Mr Anderson and Messrs Alexiou that the characteristics of brickwork in nineteenth century Paddington terrace houses were at the time well known to builders who worked on such houses in the locality.

Mr Box as the operator of the nail gun and AEA as the company on whose behalf he was using it would owe a duty to persons on No 42 to exercise care with respect to a possible nail strike only if the first prerequisite stipulated in s 5B(1)(a) of the Civil Liability Act2002 (NSW) is satisfied, namely, that the risk of a nail passing through the wall and striking someone was a risk of which AEA knew or ought to have known. It follows from the facts referred to in [21]-[23] that this prerequisite is satisfied in the present case.
The second prerequisite is that the risk should be “not insignificant”: s 5B(1)(b). The likelihood of a nail from the Ramset gun passing straight through the timber block which was being fixed to the party wall and through the wall itself, then continuing with sufficient velocity to cause injury, was quite low. Mr Box recorded in his email report of 13 November 2012 that he had not previously experienced such an event. Nor had any of the three Alexiou brothers or Mr Anderson. But the risk was in my judgment “not insignificant”.
It has been said that the statutory question whether the risk is “not insignificant” is a more demanding standard than that which applied at common law, where the question was posed in terms of whether the risk was “not far-fetched or fanciful”: Wyong Shire Council v Shirt (1979) 146 CLR 40; [1980] HCA 12. In Shaw v Thomas [2010] NSWCA 169 at [44] Macfarlan JA said (with the agreement of Beazley JA, as her Honour then was, and Tobias JA):

The requirement in s 5B(1)(b) that the risk be “not insignificant” imposes a more demanding standard but in my view not by very much.

AEA acknowledged that in Cox v Fellows [2013] NSWCA 206 at [145] and in Garzo v Liverpool/Campbelltown Christian School [2012] NSWCA 151 at [150] the Court of Appeal substantially reiterated the view expressed by Macfarlan JA in Shaw v Thomas. But AEA submitted that these authorities have overlooked a grammatical analysis of the expression “not insignificant” which, if given its due weight, would show that “the statutory formula has moved the standard rather more towards the mid point of the scale [between significant and insignificant] and away from the extremes at either end”. AEA submitted that the phrase “not insignificant” in s 5B(1)(b) “should be understood as conveying the idea of noteworthy, of substance (in contradistinction to substantial), readily identifiable”.
It is not open to a single judge at first instance to discount the considered views of appellate judges in the cases cited and, on that basis, to adopt AEA’s interpretation. The risk of a nail from the explosive power tool penetrating the wall and continuing across the adjoining property was “not insignificant” in my view because there is a rational, practical and sensible analysis of the circumstances upon which the possibility of this occurring can be seen to have been comfortably and substantially above “far-fetched” or “fanciful” as follows:

The yellow charges which were in use had sufficient explosive power to drive the 75 mm nails into solid sandstock bricks. It would be eminently possible for nails fired through a timber block into the wall to miss any of the bricks and to encounter the “very soft” mortar joints.

It necessarily follows from the configuration of the bricks laid in a bonding pattern on every fifth course that the mortar joints between the bonding bricks and above and below them extended right through the wall. The ratio of the cross-sectional area of these mortar joints extending fully through the wall to the cross sectional area of solid bricks was relatively high in the bonding courses, given that the full thickness joints occurred above, below and adjacent to every brick in each such course.

If a nail was fired with a yellow charge into a “very soft” mortar joint extending through the full thickness of the wall it is readily understandable that the nail would meet relatively slight resistance and might pass straight through.

The fact that four nails had been fired into the wall without any of them passing through does not imply that the risk of a fifth nail passing through was “insignificant”. The first four nails may have struck the centres of sound bricks. The relatively high proportion of full penetration mortar joints to bricks in the bonding courses and the relatively high frequency (one in five) of bonding courses, made the possibility that the fifth nail would encounter a low resistance mortar joint a “not insignificant” risk.

AEA submits that the successful placement of four nails would likely have given Mr Box “confidence that there was no relevant risk of harm” in firing the fifth nail. However Mr Box’s confidence is irrelevant. Whether he saw it or not, there was a risk that the fifth nail would find a full penetration soft mortar joint and pass straight through. If he was confident this would not occur then that was false confidence, involving his subjective failure to appreciate a “not insignificant” risk.
Similarly, Mr Anderson’s written statement to the WorkCover investigator that “no one would have expected the nail to penetrate the block [of] timber and the double brick wall” is irrelevant. The question whether this was or was not “expected” by anyone does not arise in the application of the legal test. Although realisation of the risk was not “expected”, it was nevertheless a “not insignificant” risk.
I conclude that a duty was owed by Mr Box and by AEA to persons at No 42 to exercise care with respect to the risk of a nail passing through and striking someone. Accurate identification of the risk which AEA was required to address in exercise of this duty of care is an essential pre-requisite to consideration of what if any action was required in order to discharge the duty. In other words, the risk must first be identified, leading to definition of the scope or content of the duty, leading in turn to ascertainment of whether there was breach by reason of such action not having been taken: Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330; [2007] HCA 42 per Gummow J at [59].
The relevant risk against which AEA was required to take reasonable care, as already mentioned, was that a nail fired from Mr Box’s Ramset gun might pass straight through the party wall into which he was firing it, continue across the adjoining property at significant velocity and strike someone. The considerations relevant to finding what precautions the duty of care required AEA to take with respect to that risk are primarily as follows:

The degree of probability that harm would be suffered by a person if care were not taken: s 5B(2)(a). That is, the liklihood that a nail fired from the explosive powered tool would pass straight through the wall and that, if it did, it would strike a person on the other side.

The likely seriousness of the harm that might be suffered by a plaintiff as a result of this risk being realised: s 5B(2)(b).

The burden – cost and degree of difficulty – of AEA taking precautions to avoid the risk of a person on the adjoining property being struck if a nail should pass through the party wall: s 5B(2)(c).

The social utility of AEA using the nail gun at No 40.

It is established that the considerations which I have paraphrased at [32] from subs (2) of s 5B of the Civil Liability Act bear upon the scope, or content, or requirements for discharge, of the duty of care. Hence they bear upon whether a breach has occurred. This is so notwithstanding that the heading “Division 2 – Duty of Care” appears immediately before s 5B: Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420; [2009] HCA 48 at [13]; Grills v Leighton Contractors Pty Ltd [2015] NSWCA 72 at [93]-[95].
The question of what precautions were reasonably required of AEA in discharge of its duty is to be approached on a prospective basis, looking forward from before the plaintiff was injured, not looking back with hindsight derived from the facts that a nail passed through the party wall and thereafter struck the plaintiff, on 9 November 2012: Vairy v Wyong Shire Council [2005] HCA 62 at [60] (Gummow J) and [126]-[129] (Hayne J); Adeels Palace Pty Ltd v Moubarak at [40]; Neindorf v Junkovic (2005) 80 ALJR 341; [2005] HCA 75 at [93].
Addressing the matters listed in [32], I find as follows:

With respect to the probability of harm occurring if care should not be taken, I have stated my conclusion that the probability of a nail passing through the 25 mm of timber and through the wall was low but “not insignificant”. The probability of harm resulting to some person if this should occur would be substantial because No 42 was an active work site and because the velocity at which the nail might travel would render it a dangerous projectile.

The likely seriousness of harm flowing to any person who might be struck by a nail penetrating through the wall and across the adjoining property would be considerable. I infer that such a projectile could, for example, take out a person’s eye. The serious injuries suffered by the plaintiff are illustrative of what could occur.

The primary precaution which the plaintiff has asserted AEA should have taken was to post a lookout or “spotter” who would take up a position from which he would have a line of sight into the adjoining property and also be able to make himself heard by Mr Box. This could have been done with negligible diversion of labour from other tasks on the building site at No 40.

The social utility of the use of the nail gun was modest. There were available several alternative means of affixing the timber blocks to the party wall without firing explosive powered nails into it: see [45] below. Mr George Alexiou gave evidence that a nail gun shot would take 30 seconds whereas a common alternative method of fixing to masonry would take up to 5 minutes. This is insignificant.

I conclude that AEA’s duty to exercise reasonable care to avert the identified risk required that, before firing, Mr Box should have ascertained whether any person was in the path which a nail might follow if it should pass through the wall, including a departure from the direct line of fire such as might result from the nail being partially deflected. Further, the duty required that AEA should warn any such person to move to a safe location and that the gun should not be fired until that had occurred. This would have required that AEA appoint a spotter to act as described above at [35(3)]. AEA breached this duty by failing to make any check for persons who might be in the line of fire before discharging the tool and by failing to cause such persons to move to safety. The injury by nail impact with the plaintiff’s temple was directly caused by the breach and AEA is therefore liable to the plaintiff in negligence for damages.

Not an obvious risk

At pars 20 and 21 of AEA’s defence it is alleged that the plaintiff’s injury resulted from the realisation of an obvious risk. The following sections of the Civil Liability Act are invoked:

5F Meaning of “obvious risk”
(1) For the purposes of this Division, an obvious risk to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person.
(2) Obvious risks include risks that are patent or a matter of common knowledge.
(3) A risk of something occurring can be an obvious risk even though it has a low probability of occurring.
(4) A risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable.
5G Injured persons presumed to be aware of obvious risks
(1) In proceedings relating to liability for negligence, a person who suffers harm is presumed to have been aware of the risk of harm if it was an obvious risk, unless the person proves on the balance of probabilities that he or she was not aware of the risk.
(2) For the purposes of this section, a person is aware of a risk if the person is aware of the type or kind of risk, even if the person is not aware of the precise nature, extent or manner of occurrence of the risk.
5H No proactive duty to warn of obvious risk
(1) A person (the defendant) does not owe a duty of care to another person (the plaintiff) to warn of an obvious risk to the plaintiff.
(2) This section does not apply if:
(a) the plaintiff has requested advice or information about the risk from the defendant, or
(b) the defendant is required by a written law to warn the plaintiff of the risk, or
(c) the defendant is a professional and the risk is a risk of the death of or personal injury to the plaintiff from the provision of a professional service by the defendant.
(3) Subsection (2) does not give rise to a presumption of a duty to warn of a risk in the circumstances referred to in that subsection.

None of these sections has any application to the present case because, in the circumstances proved, the risk of a nail being fired through the party wall and across No 42 Windsor Street could not be regarded as one that “would have been obvious to a reasonable person in the position of” the plaintiff. I am satisfied on the balance of probabilities that the plaintiff did not know a nail gun was in use at No 40 at the time he was struck or in the immediately preceding period. I accept his evidence that he did not hear any shots prior to the one which resulted in the nail embedding itself in his temple and that he did not even hear that shot. The earlier shots, fired before 1:30 pm into the common wall of No 38/ No 40, were fired in a direction away from No 42. The plaintiff’s knowledge that a nail gun was in use at that time and in that manner is not relevant to the alleged “obvious risk” of the usage of the nail gun after 1:30 pm.
I accept that Mr Box’s first four shots were fired shortly before that which caused injury. Mr Craig Anderson, on the same site as the plaintiff, heard them. But it is possible that sound travelled between the two buildings in such a way that the report of a nail gun might be heard at one location and not at another. I therefore see no reason to doubt the plaintiff’s evidence that he did not hear the first four shots. I found him in relation to this matter and in all respects completely candid. I did not detect in his manner of giving evidence a single instance of evasion, prevarication, contradiction or artifice. In the witness box the plaintiff exhibited an uncomplicated, laconic and humble directness throughout.
Even if the plaintiff (or any reasonable person in his position) had heard the nail gun in use before he was shot by it, the risk of a nail being fired at him through the wall would not have been obvious. No one located where the plaintiff was standing at No 42 could have known, even from hearing reports of the nail gun, that it was being fired against the party wall with the potential for a penetrating nail to pass through and across No 42. With the party wall blocking any view into No 40 it would not have been possible for the plaintiff or any reasonable person in his position to know that the gun was aimed in a direction dangerous to him, rather than towards No 38, or vertically down (for example to secure something to a floor within No 40), or longitudinally through the building towards the street frontage or towards the rear, or vertically upwards (for example to secure something to the underside of the joists of the first floor or to the underside of roof beams or trusses).
The defendant has pleaded that because the risk was obvious AEA “owed no duty to the plaintiff and is not liable in negligence or at all”. But even if the risk was obvious, s 5H would only operate to eliminate a duty to warn: Angel v Hawkesbury City Council [2008] NSWCA 130; (2008) Aust Torts Reports 81-955 at [83] (Beazley and Tobias JJA; Spigelman CJ, Giles and Campbell JJA agreeing); Glad Retail Cleaning Pty Ltd v Alvarenga (2013) 86 NSWLR 191; [2013] NSWCA 482 at [57] (Sackville AJA; Barrett and Gleeson JJA agreeing). The scope of AEA’s duty of care in the circumstances required it to do more than merely warn. I have found that the duty required it to refrain from firing a gun at all until all persons were out of the line of fire. The duty was in that respect breached.
I have dealt at length with AEA’s case on “obvious risk” and ss 5F-5H only because it is pleaded and has been pressed. However this part of AEA’s defence is in my view manifestly untenable and lacking in common sense. It involves the proposition that a builders’ labourer at No 42 ought to have considered himself so obviously at risk of a tradesman on the adjoining site, whose activities he could not see, firing explosive powered nails through the wall that the tradesman need not even shout a warning when he was about to fire. On the facts as I find them I have no hesitation in rejecting that proposition.

The risk was not “inherent”

In pars 22 and 23 of its amended defence AEA alleges that the injury to the plaintiff as a result of the nail striking and embedding itself in his temple “was caused or contributed to by the materialisation of” a risk which could “not have been avoided by the exercise of reasonable care on the part of AEA”. AEA relies upon s 5I of the Civil Liability Act, as follows:

5I No liability for materialisation of inherent risk
(1) A person is not liable in negligence for harm suffered by another person as a result of the materialisation of an inherent risk.
(2) An inherent risk is a risk of something occurring that cannot be avoided by the exercise of reasonable care and skill.

Again I find unrealistic the suggestion that the risk of shooting in the head with a nail gun a worker on an adjoining building site could not have been avoided by the exercise of reasonable care. If the materialisation of such a risk was truly unavoidable as an incident of use of a nail gun, then reasonable care in the performance of building work would require that use of the tool be abandoned. Such an explosive powered tool is not indispensable to construction work and was not so at the time of this incident.
There are other ways of fixing timber blocks to masonry walls. A common method is to drill a hole in the brickwork with a rotary percussion drill, insert a plastic wall plug or a timber dowel and drive a screw through the timber which is to be affixed and into the wall plug or dowel. Alternatively a dynabolt may be used, inserted into a pre-drilled a hole in the masonry and fixed in place by the expansion of a sleeve around the bolt, which occurs when it is tightened. A third method is to drill a small diameter hole and drive into it a masonry nail with a pre-attached plastic sleeve which expands as the nail is driven and grips the internal diameter of the hole. All of these alternatives are matters of common knowledge. They can be implemented with fixings which are widely used in Australia and are readily available as stock items from retail hardware stores throughout the country.
For these reasons I reject AEA’s defence of inherent risk under s 5I of the Civil Liability Act.

No contributory negligence of the plaintiff

By pars 18 and 19 of its amended defence AEA has pleaded that the plaintiff’s injury resulted from contributory negligence on his part and has claimed a reduction of 100% of its own liability. The particular of contributory negligence is failure to wear a construction safety helmet, which is said to have involved exposing himself to an “obvious risk” and to an “inherent risk” within the meaning of the Civil Liability Act. In par 25 of AEA’s amended defence to the employer’s amended statement of claim a further particular of contributory negligence is given, namely, failure of the plaintiff to warn his employer that he could hear explosive power tools being deployed in the adjacent premises.
I have found that the plaintiff was unaware of the use of an explosive powered nail gun in the adjoining premises during the period shortly before and leading up to the firing of the shot which struck him: see [12], [39]. I therefore reject the additional particular provided in AEA’s defence to the employer’s claim. Even if the plaintiff had heard any of the four shots of the nail gun fired immediately before the one which hit him, I am satisfied that he could not have been aware that a nail gun was being used against the party wall aimed towards and across No 42, towards the location where the plaintiff was standing (see [40]). He could not possibly have known that (and nor could any reasonable person in his position) because the activities of Mr Box were concealed from his view by the party wall and because neither Mr Box nor anyone else on behalf of AEA issued any warning to the workmen on No 42.

Section 5R of the Civil Liability Act provides as follows:

5R Standard of contributory negligence
(1) The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm.
(2) For that purpose:
(a) the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and
(b) the matter is to be determined on the basis of what that person knew or ought to have known at the time.

From the above findings that the plaintiff, acting reasonably, was unaware of the risk to which he was exposed by AEA’s activities, it follows that a reasonable person in his position would not have taken any precaution against the risk. I have earlier rejected AEA’s contentions, which are repeated in support of its contributory negligence argument, that the risk was “obvious” and/or “inherent” in the statutory sense: see [37]–[4645] above.
The fact that the plaintiff was not wearing a construction safety helmet does not constitute lack of reasonable care with respect to the risk which is under consideration. I am satisfied that neither the plaintiff nor anyone else at No 42 was undertaking any activity at the relevant time which created any risk against which the exercise of reasonable care by the plaintiff for his own safety called for a construction safety helmet to be worn. Even if there had been such activity at No 42, for example overhead work being undertaken with the risk of tools or materials falling from above, failure of the plaintiff to take the precaution of wearing a hard hat to avoid injury from such activity would not be relevant. Consistently with the common law, s 5R is concerned with any failure “to take precautions against the risk of that harm”, that is, against the risk which in fact materialised.
The plaintiff would not be defeated in his claim by failure on his part to take precautions against a risk of a kind and from a source entirely different from that which came to pass in the firing of the nail. Assuming he was careless for his own safety with respect to construction risks associated with, for example, overhead work at No 42, no such risk eventuated. AEA cannot opportunistically invoke the failure to wear a hard hat as contributory negligence in relation to a risk which AEA’s activities created, of which the plaintiff was unaware and against which he was therefore not reasonably required to take any precaution.
For these reasons I find no contributory negligence on the part of the plaintiff.

No breach of duty by the employer

Section 151Z(2) of the Workers Compensation Act is concerned with situations, such as the present, where an injured worker has brought proceedings against a third party (in this case AEA) for damages in respect of an injury for which compensation is payable by the worker’s employer under the Act. The subsection provides for adjustment to the amount of damages the worker may recover from AEA if it should be found that the employer was a tortfeasor liable in respect of the same damage. AEA has invoked this provision by par 24 of its amended defence to the plaintiff’s statement of claim, alleging that the employer was “wholly liable for the accident and its contribution as a joint tortfeasor is 100%”.
Further, in AEA’s defence to the employer’s amended statement of claim (in the separate proceeding which the latter has brought under 151Z(1)(d) of the Workers Compensation Act to recover the compensation which the employer has paid to the plaintiff) AEA has alleged that the employer breached its duty of care owed to the plaintiff.
I reject AEA’s contention, in both proceedings, that the employer breached its duty of care owed to the plaintiff. I hold that the relevant risk, as identified at [32] above, was not reasonably foreseeable to the employer. That is, it was not a risk of which the employer knew or ought to have known. Accordingly, there arose no duty to exercise care with respect to this unforeseeable risk and there is no liability in negligence: Civil Liability Act, s 5B(1)(a). I so hold for the following reasons.
First, I am satisfied that the employer, through its site manager at No 42 (Mr Anderson), did not in fact know that the nail gun was being used against the party wall and perpendicular to it so that its line of fire was across No 42 where he and the plaintiff were located. Nor could a reasonable person in Mr Anderson’s position have known that. The wall blocked his view, just as it blocked the plaintiff’s view.
Secondly, Mr Anderson (and hence the employer) did not know and could not reasonably have known what grade of charge was being used, or that the task was to affix timber to the wall, or what thickness of timber was involved. In short, neither Mr Anderson nor any reasonable person in his position could have had any understanding of the risk of complete penetration of a nail through the wall, even if he had known that nails were being fired perpendicular to it in the direction of No 42.
In the absence of any warning from AEA’s personnel or any announcement of what Mr Box was doing, the mere possibility of someone firing a nail perpendicular to the sandstock party wall in the direction of No 42 would not cause a reasonable person in Mr Anderson’s (or the employer’s) position to take any precautions.
I am satisfied that Mr Anderson could not have inspected the location at which Mr Box was working or the manner in which he was using the nail gun without entering upon No 40. That would have required him to go out into Windsor Street or into the rear lane and then make his way into No 40, either through the front entrance or the rear. He would not have been entitled to enter as of right nor to give any instruction to AEA personnel about taking precautions. Having ascertained what was taking place he would have had to seek AEA’s cooperation to take reasonable care for the occupants of No 42 by using a spotter as previously described, or alternatively instruct the plaintiff and anyone else at No 42 to vacate the site.
A reasonable person in the employer’s position would not have taken the initial and essential steps of entering upon No 40 to evaluate the activity there, from which any other steps would follow, in circumstances where no warning had been issued by those who were working on No 40 and where there was no more than a bare possibility that a nail gun might be being used by AEA in a line of fire which posed a risk for the plaintiff and other persons at No 42.
AEA’s submissions in support of its case that the employer breached its duty of care to the plaintiff placed great emphasis on the non-delegable nature of the employer’s duty and on the employer’s responsibility to provide a safe place of work and system of work, even in respect of the activities of third parties. AEA sought to extend the scope of the employer’s duty where a third party “is carrying on work in the near vicinity of the place of work where the employer has put the employee to work, and the employer knows or ought to know that the work so being carried out is capable of exposing its employee to personal injury”. In such a case, AEA submitted, the employer has an obligation to inform itself of the third party’s activity “so far as it has a capacity to impact upon” its employee, so that the employer is “by one means or another able to take reasonable care to ensure the safety” of its employee.
These propositions may be accepted at a general level but on the facts as I find them the critical premise is not established. AEA has not shown that “the employer [knew] or ought to [have known] that the work so being carried out [by AEA] [was] capable of exposing its employee to personal injury”. AEA relies upon the fact that Mr Anderson heard the first four nail gun reports. This fails to take account of the circumstance, to which I have earlier adverted, that no reasonable person in Mr Anderson’s position ought to have known that the gun was being fired in the direction of No 42, without warning (see [40]).
AEA’s argument that the employer, through Mr Anderson, ought to have known that Mr Box’s use of a nail gun on No 40 exposed the plaintiff to danger results from hindsight reconstruction. To illustrate, one may consider hypothetical facts which do not involve the events that actually occurred. If Mr Anderson had heard a jackhammer in use on No 40, the employer’s duty of care would not have required investigation to see whether AEA was undermining the foundations of the party wall and might cause it to collapse on the plaintiff. If he had heard timber being sawn on No 40 the employer would not have been under a common law duty to investigate whether joists or trusses were being removed which might cause the party wall to collapse through loss of lateral support. In short, the employer would have needed more knowledge of what was occurring on No 40 than a mere understanding that a nail gun was in use, before its duty of care to the plaintiff would have required it to take precautions against this third-party activity.
AEA relied upon Kondis v State Transport Authority (1984) 154 CLR 672; [1984] HCA 61 as authority for the proposition that an employer’s duty to provide its employee with safe place of work and safe system of work may be breached if the employee is required to work in an area where he is at risk from third-party activities without warning or direction. It was submitted that “conceptually the liability of [the employer] is indistinguishable from that in Kondis”. This submission was sought to be justified upon the basis that “[the plaintiff] was at risk of injury if [power charged nail guns] were used on the common wall; he wasn’t to know he was at risk, but [the employer] knew he was, and he could and should have been told (or directed) to keep away from the area of risk”.
The argument fails because I find that the employer did not know the explosive powered nail gun was being used on the common wall or that the plaintiff was risk and was not in such a position that it ought to have known those things. In Kondis v State Transport Authority the mobile crane, from the jib of which a metal rod fell and caused injury to the employed workman, was being operated by a third party on and over the employer’s railway yard where the workman was engaged. The crane was being operated pursuant to a contract of engagement by the employer. This took place in full sight and knowledge of the employee’s supervisors. The employee was not warned or directed to refrain from standing under the crane jib, either by the crane operator or by the employer (through the supervisors). The risk of the metal rod falling on the employee, as in fact occurred, was obvious. Although the primary judge found that at the time of the accident the employee acted under the control of the third-party crane driver, the employer’s duty of care nevertheless required it to adopt a safe system of work. The non-delegable duty was not discharged by leaving the employee to be directed by the crane operator. Those facts are a far cry from what is under consideration in the present case.
I reject AEA’s claim for contribution from the employer as alleged tortfeasor liable in respect of the damage. I reject AEA’s defence to the employer’s claim for recovery of the workers compensation payments which it has made to the plaintiff.

Causation of damage to the plaintiff’s spinal cord, in medical terms

Two neurosurgical specialists called by the plaintiff, Professor Fearnside and Dr Winder, are of the opinion that the MRI of 13 November 2012 and the plaintiff’s altered gait and compromised balance as observed by the physiotherapists in the ICU on and after 10 November 2012 indicate that the sudden movement of the plaintiff’s head when he was struck by the nail caused the pre-existing disc bulge at C3/C4 to compress his spinal cord at that level.
Professor Fearnside considered that the nail strike to the plaintiff’s temple “must have caused some movement of his head”. He based this view upon consideration of the energy of the impact, which was indicated by the embedding of the nail in the plaintiff’s skull and the resultant depressed fracture. He gave this opinion as to the causal mechanism of the compression injury to the plaintiff’s spinal cord, which he considered was in evidence in the MRI scan of 13 November 2012:

if he had [-] and he did have [-] cervical canal stenosis, or a narrowing of the vertebral canal at the C3‑4 level, which […] would have [been] pre‑existing and which was present [in] the MRI scan on 13 November, then that would certainly act as a vulnerability to injury, such that the energy of impact would necessarily or could be less than that which would cause the same injury in a normal neck. So his neck at that time wasn’t normal.

Professor Fearnside said:

when there’s a discreet injury to the spinal cord there is swelling, that is to say, there’s transfer of fluid and there’s more water in the spinal cord at that level which can disrupt the nerve fibres. And there are certain inflammatory mediators which are also released from the injured tissue.

The Professor said that the excess water in the spinal cord associated with injury to it would cause an “increased signal” in the MRI scan. Such an increased signal was reported in the scan of 13 November 2012, at C3/C4.

The Professor interpreted the MRI report as having revealed a “circumferential narrowing of the vertebral canal”, contributed to by both the bulging disc and the bilateral osteophyte complexes and facet joint hypertrophy. He said with respect to the facet joints:

the capsules get thicker and the capsules can intrude on the vertebral canal causing it to narrow.

Professor Fearnside further elaborated his opinion as to the causal mechanism as follows:

where there’s narrowing [of the spinal cord canal, by bulging of a disc and/or hypertrophy of facet joint capsules], that can cause a blow to the spinal cord if [-] it’s of sort of a momentary movement of the vertebral column at that level and it doesn't need to be a sustained compression, it can just be a single blow that can cause the spinal cord injury.

Professor Fearnside described the oedema in the spinal cord, revealed by the increased signal on the MRI scan, as an inflammatory response to the compression caused by the plaintiff’s head being displaced sideways and being rotated in response to the nail impact. His evidence about the duration of physiological damage in the cervical spine and in the spinal cord and C3/C4 was as follows:

Q. Is there more to the inflammatory response than that manifestation of fluid, is there swelling somewhere else or?
A. There can be swelling within the cord but I don’t think we have any evidence of this as reported in that MRI scan. The inflammatory response is short lived and would resolve over ten to 14 days.
Q. What about reaction in the disc and the facet joints, can a blow of the type
that you described contribute to them remaining swollen or inflamed?
A. No, I don’t think so, no.
Q. So why would there be symptoms continuing after the inflammatory response to the blow has subsided?
A. Because the longer term effect is the result of damage to the nerve fibres running up and down [the spinal cord] and that was manifest by his muscle weakness and his difficulty with balance and gait. So the acute inflammatory response resolves […] [I]f there’s physical disruption of the nerves that will cause […] scarring […] within the spinal cord itself, so that causes some permanent disruption of the nerve fibres which result[s] in neurological signs being manifest.
Q. The damage to those fibres affects the way in which they innervate muscles of the lower limbs?
A. Correct […] and over time some of this is reversible and some of it’s not reversible and I suspect the reason Dr Winder deferred the surgery was to try and make that assessment as to what degree of recovery would eventually occur.

Dr Winder provided a very similar analysis of how the nail impact would have caused sudden movement of the head and neck, resulting in compression contact of the disc or some other part of the C3/C4 vertebral joint with the spinal cord and damage to it, manifesting in the neurological symptoms of the lower limbs. He inferred that the impact of the nail would have caused “hyperextension or flexion, meaning that the head will go back or to the side”. The doctor said that it was “entirely reasonable” that the neurological deficits observed and symptoms complained of after the accident (including loss of power and control in the lower limbs) would have been caused by the nail impact, knocking his head to the side with force comparable to that from being hit by a bat, in response to which he had taken hold of one of the vertical members of the staircase balustrade to steady himself.
Dr Winder said:

where people who have a narrowing of their spinal canal, or with a disc protrusion, they suffer either a flexion or extension injury the cord gets hit up against the disc because the space is narrowed and you can get a degree of inflammation or blood product which can cause changes within the cord.

This mechanism of injury to the spinal cord was further explained by Dr Winder:

Q. With a flexion or hyperextension injury of the type you’ve described could the disc push against the spinal cord?
A. Absolutely, because the spinal cord is surrounded by a thin layer of cerebral spine fluid and then you have the dura, which is […] essentially like a rice paper roll holding all the fluid together. When you’ve got a bulge coming in which is very obvious on the MRI scan [of 13 November 2012] it doesn’t take much for that to be hitting right up against the cord, and it’s been shown on many studies that as soon as you extend the neck or go into, you know, a flexion that that's enough to actually displace the cord right up onto that bulge. So, if the bulge is here, the cord will hit up against it.
Q. And that would be the bruising mechanism?
A. Yep.

Dr Winder considered it irrelevant whether the part of the plaintiff’s cervical spinal cord which showed increased MRI signal on 13 November 2012 might already have had some pathology, prior to the nail gun incident of 9 November, which would similarly have exhibited increased signal if an MRI scan had been done at an earlier time. He based that opinion upon the circumstance that the plaintiff was asymptomatic prior to the accident. The doctor said:

the causal relationship between an injury of extension and developing neurological sequelae is pretty clear cut in my opinion because it’s irrelevant whether [the feature associated with the increased MRI signal] was there before or not, [it] still has been made worse by this injury.

In Dr Winder’s opinion the part of the plaintiff’s cervical spinal cord which exhibited increased MRI signal was affected by either oedema or myelomalacia as a result of the hyperextension/flexion injury. He explained that a compression injury to the spinal cord could cause an inflammation of glial tissue, which is interspersed with and holds together the nerve fibres of the cord. He referred to this as gliosis which, he said, may “cause just a gradual scarring of sorts … and it [the glial tissue] actually shrinks down a little bit”.
Dr Cochrane, a neurosurgeon called by AEA, agreed it was “quite plausible and quite likely” that the nail impact would have “jerked” the plaintiff’s head and “quite likely” that this would have brought the bulging disc at C3/4 into contact with the spinal cord and “caused damage” to it. He said “absolutely conceptually such a thing would irritate or damage the spinal cord”. However he said he “couldn’t comment” on the degree of damage that might have been done if that occurred. He agreed that on the MRI scan of 13 November 2012 “the increased cord signal would indicate either oedema or myelomalacia at that point” but he “couldn’t comment on the timeframe” of that pathology or whether it was pre-existing.

Dr Cochrane had three bases of reservation against accepting that cord damage occurred at the time of the known impact and was the cause of the neurological disorder of the plaintiff’s legs observed from the afternoon of 10 November 2012 and which has afflicted the plaintiff thereafter. The first basis was the absence of any record of neurological signs exhibited during the first 24 hours following admission. The second was Dr Cochrane’s view that a CT scan of the plaintiff’s cervical spine taken in September 2007 may indicate earlier cord damage, probably from a snowboarding accident in about 1998. Dr Cochrane’s third basis was that fluctuating symptoms during 2013 raised for him doubts about whether the neurological symptoms stemmed from cord damage on 9 November 2012.

Absence of record of neurological symptoms immediately following admission

AEA’s counsel cross-examined the plaintiff’s medical experts on the St Vincent’s Hospital records, which indicate that no loss of control or power in the plaintiff’s legs was detected by medical staff during the first 24 hours after his admission. The records show that he suffered no loss of consciousness in connection with the nail gun incident. His Glasgow Coma Score was 15/15 when the ambulance brought him to the Emergency Department. A triage assessment on admission did not reveal any clinical signs of change to his spinal cord at the cervical level. Both arms and legs were found to have normal power. This was assessed with the patient lying down.
At 2:50 pm on 9 November 2012 Dr Brooks, an unaccredited neurosurgical registrar, examined the plaintiff. He recorded that power in all four limbs was “5/5”, again assessed with the patient supine. Yet another examination was made at 5:30 pm on 9 November 2012, upon the plaintiff arriving at the ICU after removal of the nail. Power was again found to be “5/5” in all limbs. At this time reflexes were recorded as “++” in both arms and “++↓” in both legs. Dr Winder gave evidence that these abbreviations signified elevated reflexes consistent with spinal cord involvement. Dr Cochrane interpreted the abbreviations as indicating normal reflexes. I am not able to resolve this difference without evidence from the person who made the observations and wrote the notes. I therefore cannot determine whether or not the plaintiff was hyperreflexive late on the afternoon of his admission.
The plaintiff continued to complain of pain late in the afternoon of 9 November 2012 and was given morphine at intervals. The following morning, 10 November 2012, he was able to mobilise, apparently with assistance, to the toilet and to wash. At 9:25 am a further examination again showed he was able to move “all limbs to command” and had “5/5 power” in each case, with nil deficit. Nursing notes from that time record that he was “mobilised”. A CT scan of the brain was carried out at 10:17 am. The depressed fracture of the skull remained visible on this. The radiologist’s report stated that no intracranial haemorrhage could be identified nor any infarct or hydrocephalus (fluid in the cavities within the brain).
At 2:00 pm on 10 November 2012 the plaintiff was seen by another unaccredited neurosurgical registrar, Dr Lukins. He discussed with Dr Winder both the recent CT scan of the brain and his own clinical observations of the patient. As recorded, those observations were that the plaintiff was stable and continued to complain of a mild to moderate headache. Dr Winder considered that the plaintiff could be discharged the next morning, 11 November.
In accordance with usual hospital procedure the plaintiff was seen by a physiotherapist at 2:30 pm on 10 November 2012, following Dr Lukins’ visit. The purpose of this was to verify his mobility and to advise him upon self care before discharge. The physiotherapist noted that the plaintiff’s gait was abnormal when he walked with one person assisting him. He adopted a wide base of support in his stance and exhibited elevated lateral sway and reduced stride length. “Significantly reduced strength” in all limbs was found as well as reduced sensation and reduced high-level balance. The physiotherapist assessed him “not safe for [discharge] home at this time”. He remained an inpatient.
On 12 November 2012 Dr Lukins recorded that the plaintiff still complained of headache and that nursing staff reported him to be unsteady. The doctor ceased opioid pain medication and prescribed Panadeine Forte instead. Following further discussion with Dr Winder, Dr Lukins considered that the plaintiff could be discharged but a physiotherapist found that he still felt unsteady, that his hands shook as he attempted to put on shoes, that he required assistance walking and that his steps were slow and shuffling. He was assessed not safe to attempt stairs.
After the further CT scan of 12 November 2013 (see [16]), concerns regarding his mobility continued into 13 November 2012 when the MRI scan was undertaken with results as referred to at [17].
Professor Fearnside did not consider that his opinion on causal nexus between the nail gun accident and the plaintiff’s neurological problems was invalidated by the circumstance that neurological deficit in the lower limbs was not picked up in the hospital until 24 hours after admission. The doctor explained why that delay was not significant as follows:

Because he was initially seen in the emergency department, at which time he would have been […] in bed. Focus was on what was going on with his head. He was then moved to intensive care where he was observed overnight, so he was in bed and it wasn’t until he was mobilised the next day that it was realised that he couldn’t walk properly. So while he was in bed it’s axiomatic that he wouldn't be able to be assessed for gait or balance.

Dr Winder said much the same thing:

… you talk about a general neurological assessment when a patient comes in. The patient has been in intensive care where they are assessed initially, and before they were discharged from intensive care, and they are assessed from a neurological basis while they were in bed. Can you move your arms? Can you move your legs? Yes. Neurologically intact, and that’s how it goes. He then gets up to the ward, and he is able to sit out of bed, he is able to mobilise, when he is done with the physiotherapy and then it’s identified that he’s got a gait assessment abnormality, which wasn’t identified before because we don’t assess that in ICU, so once it’s been identified it is a problem which needs to be addressed, and he subsequently has gone on to have [magnetic resonance] imaging, I believe, after that.

That evidence of Professor Fearnside and Dr Winder satisfies me that the absence of any observation of symptoms of spinal cord trauma in the first 24 hours after admission is not a sound basis for inferring that such trauma had not been sustained or for rejecting the doctors’ opinion that the symptoms, as in due course observed and recorded, had been caused by the mechanism of spinal cord damage which Professor Fearnside and Dr Winder describe. Their evidence about the limitations of the examination of the patient after his first admission is entirely consistent with the hospital records.
Further, the opinion of these medical experts is that the inflammatory response of the spinal cord to a compression injury would not be instantaneous so that resultant neurological deficits would not necessarily have manifested themselves in the first 24 hours after injury, even if rigorously tested for. For example, Dr Winder said:

Q. If there were inflammation, it would give rise to a condition giving rise to a signal cord change within minutes, or an hour or so, relatively quickly?
A. It’s entirely variable. You know, I’ve seen the fluctuation where it can be instantaneous, and patients come in with significant oedema, and I’ve seen other cases where it can develop over a week.
Q. It is more likely to be instantaneous or within minutes or hours, or less likely?
A. It’s entirely variable.

There is no suggestion, in the hospital records or elsewhere in the evidence, that the symptoms of cord trauma detected on 10 November 2012 were anything other than genuine. Moreover they accorded with Professor Fearnside’s and Dr Winder’s hypothesis of causation (namely, compression of the cord by a disc bulging into the stenosed spinal canal as a result of neck extension/flexion). That hypothesis was immediately and strongly supported by the MRI scan conducted on 13 November, showing increased signal in proximity to the bulging disc. It is significant that nothing had been done to the plaintiff in the interval after the nail gun accident and up to the time at which the neurological symptoms in his legs were first identified which could constitute an alternative mechanism by which those symptoms could have been caused at that time.
Dr Cochrane considers that the absence of any report or record of ataxia or other neurological signs during the first day of the plaintiff’s admission to St Vincent’s Hospital is an indication that the neurological deficits in his legs did not arise from spinal cord injury sustained in the nail gun accident. He said that in his experience the most profound neurological deficit from traumatic injury to the spinal cord is normally present “immediately or very soon after the primary traumatic event”. He said this “may be not instantaneous but certainly with an hour or two of the event there should be maximum neurological deficit”. However in the same passage of his evidence he acknowledged that “conceivably, there could be a relatively minor trauma, not that severe, not clinically even initially, and then the delayed deterioration due to swelling or oedema, but that deterioration due to swelling or oedema should therefore resolve as the swelling resolves”.
This evidence is not sufficient to cause me to conclude that the history of emergence and identification of the plaintiff’s symptoms is inconsistent with the mechanism of causation to which Professor Fearnside and Dr Winder have attested. Their conclusion that the symptoms were caused by cord damage sustained upon the nail impact to the head is strongly supported by a rational and scientific hypothesis, by temporal connection and by absence of any other explanation of why or how the plaintiff’s symptoms emerged when they did. They have explained to my satisfaction that the absence of any report or record of altered control over the lower limbs during the first 24 hours of hospitalisation is not inconsistent with their conclusion.

Spinal cord damage not caused by previous incident

The plaintiff was born on 23 July 1984. He has acknowledged that when he was either 14 or 15 years of age (that is, in 1998 or 1999) he was involved in a snowboarding accident which caused him temporary paralysis. It is also common ground that on 17 September 2007 he was seriously assaulted and knocked to the ground, striking the back of his head on a paved surface. Upon hospitalisation on the latter occasion CT imaging of his cervical spine was performed. The radiologist’s report on that occasion noted:

no acute fracture or disturbance of alignment. The pre-vertebral soft tissues outline normally.

The plaintiff tendered an image from the CT scan of September 2007, being a sagittal (side view) cross-section. This appears to show a small area of high radio opacity in the spinal cord at the C3/C4 level. In a report of 3 November 2017 Dr Cochrane expressed the opinion that this “could represent previous blood product, and on balance of probability I consider it likely that [the plaintiff] had pre-existing spinal canal stenosis and a proximal cord lesion predating the work-related injury of 9 November 2012”. Dr Cochrane thought that what he interpreted as a blood speck in the CT image was probably associated with the earlier snowboarding accident rather than with the September 2007 assault.
Dr Winder disagrees with Dr Cochrane’s interpretation of the 2007 CT image for four reasons. First, in Dr Winder’s view CT scans notoriously exhibit artefacts. He considers that the area of high opacity is likely to be an artefact rather than evidence of blood product. Secondly, he reviewed the axial images from the same CT study and found no indication of blood product or lesion on the axial view. In his opinion that view would be more accurate for identifying a spinal cord lesion if one were present. The conflicting evidence of the doctors on these first two points is evenly weighted and I am not able to determine whether earlier spinal cord damage is or is not shown in the 2007 CT image on the basis of these points. Dr Cochrane did not accept Dr Winder’s reading of the relevant area of opacity in the sagittal aspect as a mere artefact. He construed this part of the image as “an isolated, somewhat ovoid region of high density” whereas he thought “an artefact will typically be a streak phenomenon”. Further, he interpreted the axial image as including “a streak of high density within the substance of the anterior spinal cord” apparently, in his view, corresponding with the sagittal scan.
Thirdly, Dr Winder considers that if there were blood product or a lesion in the spinal cord dating from September 2007 or earlier, the plaintiff would have had associated neurological symptoms from that time. It is common ground that he did not exhibit symptoms consistent with such spinal cord damage in September 2007 when the scan was done or any time prior to 9 November 2012. Fourthly, the radiologist’s report on the 2007 scan did not suggest that the area of high radio opacity represented blood product. On the balance of probabilities, I am persuaded by these third and fourth considerations to accept Dr Winder’s view that the 2007 CT scan is not evidence of spinal cord damage at the cervical level dating from (at latest) 2007. I find the absence of neurological symptoms prior to 9 November 2012 particularly compelling. As Dr Winder said, that circumstance renders the disagreement over radiological interpretation inconsequential. If there had been prior damage to his cervical spinal cord it did not interfere with the functioning of his lower limbs whereas neurological deficits were manifest 24 hours after the nail impact, an impact that was well capable of having caused the bulging disc at C3/4 to have compressed the cord through extension or flexion of the neck.
Also with respect to the third point, a 2007 report of an ambulance officer recorded that the plaintiff was ataxic when attended at the scene where he had been assaulted. However Professor Fearnside thought this would be explained by the heavy blow he received to the face at that time, a probable concussive episode and possibly the effects of alcohol. The professor gave evidence that instability of balance can be caused by inner ear disturbance and by disorder of the frontal lobes of the brain or the cerebellum. He could see nothing in the 2007 CT scan by which this ataxia could be attributed to any involvement of the cervical spine at that time.
The medical experts for both parties are in agreement that the 2007 scan does show degenerative changes in the cervical spine already present at that time. Osteophyte formation had by then caused a degree of narrowing of the spinal canal through the cervical vertebrae and the disc bulge at C3/C4 may have been developing then (or at some later date, but before November 2012). Dr Cochrane has taken that evidence, in combination with his view that blood product was in evidence in the spinal cord as at 2007, to form a conclusion that “on balance of probability … it [is] likely that [the plaintiff] had a pre-existing spinal canal stenosis and a proximal cord lesion predating the work-related injury of 9 November 2012”. It is the opinion of Professor Fearnside and Dr Winder that a degree of stenosis existed prior to the nail gun incident but that neither it nor anything else had caused spinal cord damage and the plaintiff was neurologically asymptomatic with respect to his cervical spine up to 9 November 2012. For the reasons given above I accept the latter view on the balance of probabilities.

Plaintiff’s post accident lower limb neurological symptoms and treatment

The plaintiff gave evidence that after he was discharged from the Sacred Heart rehabilitation hospital on 21 November 2012 he continued to suffer from poor balance and difficulty with stairs throughout 2013. He said that his balance improved up to mid 2013 but never resolved entirely. He felt unsteady walking uphill or downhill and needed a support or a rail or to hold his partner’s hand. He could not run or stand on one leg during 2013. His balance got worse from mid-2013 and from that time he experienced numbness in his thighs. His account of difficulty walking, maintaining balance and climbing up and down stairs, from when he returned home in late November 2012, was corroborated by his then partner who gave evidence that at that time she had to help him with everything except the simplest domestic tasks.
These ongoing disabilities with respect to his lower limbs were also confirmed by records of the St Vincent’s Outpatients facility from 13 December 2012, when he attended for assessment and rehabilitation. He then reported that he still felt weak in his legs and he was observed to be unsteady on slopes and uneven ground. He needed to use a rail to go up and down stairs and found it difficult to walk heel to toe. The plaintiff commenced physiotherapy with Dr Schneider from January 2013. Dr Winder saw him on 10 January 2013 and due to concern about the possibility of further damage to the spinal cord recommended a repeat MRI scan in six weeks.
A close friend of the plaintiff, Ms Ching, also confirmed his loss of mobility following the accident and continuing into 2013. She said he made some improvement with respect to balance and control of his legs in the first half of 2013 but from then until he underwent surgery on 25 November 2013 she thought that his balance and leg control declined.
On 12 September 2013 Dr Winder reported to the plaintiff’s general practitioner that he remained “mildly hyper reflexive of the upper and lower limbs consistent with his cord contusion injury”. Dr Winder considered at that that time that the plaintiff was at high risk of further damage to his spinal cord from the C3/4 disc protrusion and sought approval from the workers compensation insurer for an MRI scan, preliminary to performing anterior cervical discectomy and fusion to decompress the spinal cord. The recommendation for this operation was repeated on 23 October 2013. On 1 November 2013 Dr Winder assessed the plaintiff’s symptoms as worsening and warned his GP of the risk of “permanent neurological damage”. He sought urgent approval to carry out the surgical procedure he had recommended.
St Luke’s Hospital records of observations following the surgery by Dr Winder on 25 November 2013 show that the plaintiff continued to have some ataxia, weakness and poor balance continuing into mid-December 2013. He experienced considerable pain in his neck after the operation, which subsided over about two months. The plaintiff’s partner gave evidence that he had considerable difficulty with stairs immediately following his discharge from hospital in December 2013. The plaintiff suffered a complication of the operation, namely, inflammation around the cervical cord in the proximity of the operation site. This gave rise to a spastic gait and ongoing neck pain until the inflammation gradually resolved. Post-operative physiotherapy commenced in mid-January 2014. By then Dr Winder assessed that his strength had greatly improved and there was no evidence of hyperreflexia. However the plaintiff still had some balance difficulty and proprioceptive abnormality. That was manifested by a tendency to fall backwards upon closing his eyes.

I accept the evidence summarised above regarding the onset and course of the plaintiff’s migraine symptoms, the treatment he has received and which he is continuing to receive. I accept Dr Tisch’s diagnosis and his prognosis. In the evidence of the plaintiff and of some of his lay witnesses there was a degree of variance in the description of past symptoms and their frequency. The evidence which I have summarised above and accepted is largely supported by contemporaneous medical records of histories given by the plaintiff at relevant times. Dr Tisch’s diagnosis was not the subject of any contrary medical opinion. There was no challenge to his evidence about the necessity for the treatment he has administered or to the doctor’s prognosis.
I accept the plaintiff’s evidence regarding his migraine symptoms as at the date of the trial. He said a migraine attack “can happen … at any time”. Sometimes he would have five or ten minutes’ warning of an attack. At other times an attack can come on “right away”. Sometimes he has such attacks every day for a few days or even up to two weeks, then he may have no further attack for “like a few days up to like - a few weeks … it’s all over the place”. After the Botox injections he is still not completely free from attacks and may suffer one or two per week for durations of between four hours and two days.
Ms Ching gave evidence, which I also accept, of the severe effect these migraine attacks have upon the plaintiff. She has observed him exhibit signs of extreme disabling pain when suffering a migraine. On one occasion she observed the commencement of an attack whilst the plaintiff was driving and he “barely made it back to his flat in Bondi because of the pain”. To Ms Ching’s observation the plaintiff deals with these attacks by taking prescribed medication which puts him heavily to sleep.
Even allowing for the inherent element of approximation in this evidence regarding rapidity of onset, frequency, duration and severity of migraines, it is apparent that the optimal treatment he is receiving from Dr Tisch still leaves the plaintiff with a chronic condition which seriously detracts from the quality of his life and greatly limits his capacity for gainful employment. The plaintiff has himself correctly observed that the unpredictability of onset and duration of the attacks would make him unreliable to an employer.

Cause of post-accident migraine

In Dr Tisch’s opinion the migrainous headaches which the plaintiff has suffered from the day after the nail gun accident have been caused by that event. The doctor considers that the history of symptoms related above “is entirely consistent with a severe and persistent post-traumatic headaches [sic] migraine syndrome and whiplash”. On the history given to him by the plaintiff Dr Tisch assessed that prior to the accident he had “occasional migraine, or shall we say, a susceptibility for migraine”. In the doctor’s experience when such a person suffers a blow to the head of the type that occurred here “the likely scenario is that the headache that they will develop in consequence to that will be more in keeping with migraine than an ordinary headache, because they are migraine susceptible”.
In answer to my own questions the doctor said that he thought the mechanism of injury to the plaintiff’s spinal cord was that the “bat-like violent blow and subsequent jolting and whiplash type injury to his neck” caused some part of the disc at C3/4 or some other part of the spinal structure to press against the spinal cord. He then gave these answers:

Q   From that to the symptoms of migraine, is the causal link fully understood in your specialty?
A   I think we need to be careful in attributing the migraine process entirely to the neck. Let’s not forget that he also was impacted severely in the head and I think it’s a combined thing. I think the local trauma to his head was also a significant driver for the development of post-traumatic migraine.
Q   Is that causal connection fully understood in your specialty?
A   It’s well-described and there is abundant literature that after a head injury – and it does not need to be a head injury with loss of consciousness … even mild to moderate head injuries can be associated with post-traumatic headaches, the majority of which take the form of migraine, so called post-traumatic migraine, and that’s indeed what I think he is suffering from.

Dr Tisch does not consider the fact that the headaches were not constant for the whole period following the accident up to the date of his surgery in November 2013 inconsistent with the attribution of this migraine condition to the nail gun accident. He said that the history is:

very typical in post-traumatic headache and migraine. It’s a fluctuating disorder with periods of exacerbation as well as periods of relative remission.

Dr Tisch took into account that venous engorgement following the operation of November 2013 caused some pressure in the cervical spinal cord and led to symptoms of spastic gait and discomfort. He took into account that the plaintiff experienced more frequent migraines following the operation. This did not alter the doctor’s view of causation. He said:

the post-traumatic headache and migraine syndrome was already well-established prior to his decompressive surgery and was the result of the nail gun injury, not the surgery.

Dr Tisch did not consider that the syndrome would have arisen from the degenerative spondylosis at C3/4 as seen in the MRI of 13 November 2012. He was asked whether, having regard to that degeneration, he would have expected the plaintiff to suffer the migraine condition “without the intervention of a specific injury of that type” (referring to the nail hitting the left side of the plaintiff’s head, with a force as if he had been hit by a bat and causing him to stagger to the right). The doctor said:

No. I think he wouldn’t have developed this post-traumatic migraine syndrome at all had he not been hit in the head with the nail.

Dr Tisch considers that although the surgery may have caused the plaintiff additional headaches:

normally if someone is getting headaches after a spinal decompression they are usually self-limiting and disappear within a week or two, maybe a few weeks, they don’t persist for months and years as we’ve seen.

If the plaintiff had not suffered the nail gun injury, Dr Tisch would not have expected the spinal fusion operation in itself to cause permanent migraines of the type the plaintiff has suffered and continues to suffer. The doctor has never seen such a consequence of surgery in his clinical experience. He accepted that the operation had a detrimental effect upon control of the post-traumatic headache and migraine syndrome, which the plaintiff had suffered since the accident one year before. The doctor considers the syndrome was susceptible to worsening from the surgical intervention.
I accept that the plaintiff’s chronic and established post-traumatic migraine and headache syndrome was caused by the nail gun accident. No contrary view was expressed by any other witness with comparable expertise. Dr Tisch adhered to and justified his opinions most convincingly in cross-examination.

Psychiatric consequences of the accident

Two psychiatrists who have examined the plaintiff, Dr Jungfer (who was engaged by the plaintiff’s solicitors) and Dr Selwyn Smith (engaged by AEA) have diagnosed him as suffering post-traumatic stress disorder (“PTSD”) which they consider was caused by his experience of the nail gun incident. On the basis of the history taken by Dr Jungfer she said the disorder is characterised by intrusive recollections of the circumstances in which the plaintiff was injured, nightmares and a highly anxious reaction whenever he is exposed to a construction site environment.
After a second examination of the plaintiff on 25 May 2017 Dr Jungfer concluded that the plaintiff’s PTSD symptoms persisted but had stabilised. She did not think any further “psychological intervention” was indicated. Dr Smith’s diagnosis is PTSD “in partial remission”. Dr Jungfer recorded that in May 2017 the plaintiff described ongoing feelings of low self-esteem and episodic depression and anxiety. She regards these symptoms as being caused by the PTSD. Dr Smith did not receive from the plaintiff any report of having experienced depressive symptoms. In view of the plaintiff’s history of neurological symptoms following the accident, his experience of the surgery and recovery, his ongoing battle with episodes of migraine and his inability to return to the physical work to which he was so well suited, I accept that he does, at least from time to time, suffer low mood, loss of self-esteem and frustration with his situation. It would be very surprising if he did not.
The plaintiff reported to Dr Jungfer that since the accident his memory has become worse, his thinking has slowed and a pre-existing stutter has been exacerbated. Dr Smith was not told by the plaintiff that he had any cognitive impairment. There is disagreement between the psychiatrists as to whether heightened anxiety associated with the PTSD may be causing his stutter to worsen. I do not consider that these discrepancies in the evidence are capable of being resolved in the absence of some objective measure of cognitive ability and of speech impediment, before and after the accident. But I also do not think that this is important to the assessment of damages. The manner in which the plaintiff was able to give evidence on my assessment showed an ability to respond to questions, to express himself and to articulate reasonably, consistent with his admittedly modest level of education. His hesitancy of speech requires a degree of patience on the part of the listener. For the purposes of assessing damages, even if his stutter is somewhat worse than before it is not a significant disability and is not materially disabling with respect to his capacity for employment.
Most importantly for the purposes of assessing damages, both psychiatrists are of the view that his reaction to building site environments, which is a manifestation of his PTSD, disables him from returning to work as a builder’s labourer. However they both consider that the PTSD does not otherwise prevent him from working.

Non-economic loss

In determining the severity of the plaintiff’s non-economic loss as a percentage of the most extreme case for the purposes of s 16 of the Civil Liability Act, I take into account the following factors:

The plaintiff suffered very considerable and distressing shock and local pain to the head and neck upon the impact of the nail and during the first days of recovery in hospital.

He has been affected by loss of balance, fluctuating during the first 12 months until his spinal fusion operation and gradually improving thereafter, culminating in a residual degradation of balance which will remain with him.

The plaintiff has had to undergo spinal surgery, including the complication of the operation through engorgement of the cord and attendant neurological deficits.

The plaintiff has suffered severe recurrent migraines which greatly interfere with his enjoyment of life. He will continue to suffer them indefinitely and will always require injections, approximately every 12 weeks, to reduce their severity as far as possible.

The plaintiff has suffered and will continue to suffer PTSD but not in a severely intrusive or debilitating form. He has suffered and will likely continue to suffer episodic depressed mood and frustration as a result of the limitations upon his physical capacities.

The plaintiff is now aged 33 years and has a life expectancy in the order of a further 50 years.

Allowing for the high degree of likelihood that the plaintiff would have suffered such symptoms and had to undergo such surgery at some stage of his life, nevertheless there is to be taken into account a reasonable chance that without the accident he may have had another ten or more of his younger and more active years free of such pain and suffering and a small chance that he would have escaped this altogether.

Assessing the plaintiff on the basis that all of his neurological symptoms as well as the migraines and PTSD, for the remainder of his life, are wholly attributable to the accident, I would find him to be 45% of a most extreme case. Making allowance for the likelihood of spinal cord damage in any event, as referred to at [142] and [173(7)], I would reduce the percentage of a most extreme case that has been caused by this accident to 35%. Applying that percentage to the statutory maximum amount of $612,500, the non-economic loss component of the plaintiff’s damages is $214,375, which is to be rounded to $214,500 (see Civil Liability Act, s 16(4)).

Past economic loss and superannuation

I find that from the date of the accident up until trial the plaintiff has been entirely incapacitated from working in any role reasonably open to him, as a result of the combined effect of the neurological symptoms affecting his legs, the migraine attacks and PTSD. This finding is qualified to the extent that since about late 2014 he has been able to perform minimal casual work on the reception desk at the gymnasium where he trains, for which he has been remunerated with the value of a free gym membership and nominal payment. That work was initially on one day per week, for $30. At some date before 30 April 2016 (the date of Ms Vucovic’s statement) he commenced to help on the gym reception desk two days per week, at $55 for 5½ hours. The work has been to a degree intermittent due to unpredictable disabling migraine attacks.
The incapacity from work throughout this period has been due in part to the plaintiff’s poor balance as a result of neurological damage. This has precluded him from working on building sites. The PTSD and his inability to do heavy lifting because of the risk of further damage to his cervical spine have also precluded him from such work. I accept that for some of the period up to trial the plaintiff would have been physically capable of other unskilled work such as that of a storeman, a kitchen hand, a courier or driver (provided no heavy lifting were required). Those are occupations for which Dr Buckley, a rehabilitation physician, considered him physically fit as at the date of the trial. However the severity and unpredictability of his migraines in my view has disqualified him from such employment to date.
After assessing the plaintiff on two dates during the pre-trial period, Dr Buckley expressed the view that he was unemployable on the open market. He attributed this to the plaintiff’s limited education, modest intellectual capacity and lack of skills or the capacity to acquire them, combined with residual balance deficits, constraints upon heavy lifting, PTSD and intermittently disabling migraines. I accept Dr Buckley’s assessment.
The plaintiff was a permanent casual employee earning $846 net per week at the date of the accident. He would have worked only 48 weeks per year and, as a casual, would not have been entitled to holiday pay during the usual four week shutdown of the building industry from late December into January each year. It is reasonable to infer that he would have taken four weeks’ holiday per annum. AEA submits that past economic loss should be calculated on the basis that he would have worked only 47 in each year, losing one week to sickness or other reasons for absence without pay. There is no evidence to justify a finding that he would have lost an additional week in every year for the past five, for such reasons.
Mr Weatherall, the principal of the plaintiff’s former employer, gave evidence that by the date of his statement, 29 April 2016, the plaintiff would have been a leading hand earning $1,042 net per week if he had not suffered the accident. There is no evidence about increases in rates of pay over the relevant period in the building industry generally. Taking into account increases in the cost of living and the employer’s favourable view of the plaintiff and desire to retain and promote him I infer that it is more likely than not he would have received annualised increases of about 2%.
There must be allowance for his receipt of an average of approximately $40 per week from the gym since late 2014. Accordingly I calculate his loss of earnings up to the date of the trial as follows:

Period

Number of weeks

Rate $

Extension $

10.11.2012 to 9.11.2013

48

846

40,608

10.11.2013 to 9.11.2014

48

863

41,424

10.11.2014 to 9.11.2015

48

840

40,320

10.11.2015 to 29.04.2016

20

858

17,160

30.04.2016 to 29.04.2017

48

1,002

48,096

29.04.2017 to trial

26

1,023

26,598

Total

$214,206

On the authority of Najdovski v Crnojlovic (2008) 72 NSWLR 728; [2008] NSWCA 175 at [58] (Basten JA, Allsop P agreeing) I calculate the plaintiff’s lost superannuation contributions up to the trial date at the rate applicable under the Superannuation Guarantee (Administration) Act 1992 (Cth) on the lost gross wages. The rate was 9% to 30 June 2013, 9.25% from then until 30 June 2014 and 9.5% thereafter. Rather than recalculate the past loss of earnings at gross figures and apply these varying rates, I will apply as an approximation 11% to the lost net wages. On that basis the lost superannuation contributions he would have received from Building Partners up to the date of the trial would have been $24,174. I disregard the residual earning of $40 per week in calculating that figure. He has not received any superannuation contribution from the gym.

Future economic loss

Mr Weatherall said he could not re-employ the plaintiff even if his balance and strength were not compromised, because of the unreliability of his attendance due to the post-traumatic migraine syndrome. Ms Vucovic, who has given him the part-time employment at the gym she operates, does not regard the plaintiff as employable in her type of business on a full-time basis, at least in part due to his inability, at short notice, to attend work when he suffers a migraine attack. She has experienced his unreliability in this respect but makes allowance out of friendship and a desire to help the plaintiff. AEA submits that Ms Vucovic’s evidence demonstrates only “modest” unreliability as a result of the plaintiff’s migraine attacks. I do not accept that as a meaningful characterisation of her evidence. In any event the degree of unreliability the witness was able to describe is qualified by the circumstance that she has only ever sought the plaintiff’s services at the gym reception desk for part of one or two days per week. His unreliability to an employer requiring him to work five or six days per week would be a problem of an entirely different order.
AEA also submits that the plaintiff’s employability should not be found diminished by reason of the migraines in the absence of an opinion from Dr Tisch to that effect. I reject that submission. The Court is able to make its own assessment of whether or not frequent and unpredictable absence due to migraine, for one or multiple days on each occasion, would affect adversely the plaintiff’s prospects in the market for unskilled labour. I conclude that this characteristic of the plaintiff would make it impossible, in practical terms, for him to obtain regular full-time employment within the limited range of jobs for which he is suited.
The plaintiff contends that but for the accident he would most likely have worked to 67 years of age and that his future economic loss should be calculated on the basis of 34 years of earnings at the rate of $1,063 per week. The rate is based on the evidence referred to at [179]. AEA submits it is far more likely that he would only have worked in the building industry as a leading hard builder’s labourer until, at most, age 60. That is, he should be regarded as having lost no more than 27 years of earnings. I accept AEA’s submission but I consider the resulting calculation should be subject to further adjustments.

First, there should be a discount to allow for the quite high likelihood that at some point during those 27 years the plaintiff would have been unable to earn at all for 18 to 24 months, as a result of a cervical spinal incident and the need for an operation. Secondly, there must be a reduction for the risk that, in such an event, the plaintiff’s subsequent employability would be restricted (even in the absence of the migraines and PTSD) and that he would suffer reduced average earnings. As referred to at [144], narrowing of the range of work he could do, to exclude heavy labouring, would make it difficult for him to sustain full-time employment. Thirdly, an allowance in the plaintiff’s favour should be made for the reasonable likelihood that, if he had ceased to work as a labourer in the building industry after 27 years at age 60, he nevertheless would have been able to continue working in some less heavily physical capacity had he not been afflicted with the migraines and PTSD.
The third of the above adjusting factors offsets the first two to some extent. As a best estimate I take these three considerations into account by increasing the allowance for the vicissitudes of life from 15% to 20%. I regard his residual earning capacity as currently $55 per week, taking into account the casual/part-time work at the gym. I see no reason why he should not be able to sustain at least that modest level of earnings. The employment through which he derives it at present is to some degree charitable but it is reasonable to predict that another equivalent part time job could be obtained if the present one should end. The lost wages are therefore $1,063 less $55, leaving $1,008 per week. The net present value of $1,008 per week for 27 years at a discount rate of 5%, after making the 20% deduction, is $631,411 (this and all subsequent figures are rounded to the nearest whole dollar).
Compulsory employer contributions under the Superannuation Guarantee (Administration) Act will increase to 12% by 1 July 2025, with 0.5% increments at various dates between now and then. I apply to the net present value of lost net wages the weighted average percentage for 27 years, in accordance with the table given by Mr D Villa, Annotated Civil Liability Act 2002 (NSW), 3rd Ed, Lawbook Co, Sydney, 2018 at [2.15C.050], namely, 13.9%. The amount for future superannuation contributions at 13.9% is $87,766.
I reject AEA’s submission that damages for future economic loss ought to be awarded in the form of a mere “buffer” of between $75,000 and $250,000. That proposition is advanced upon the basis that the plaintiff’s migraines have not been shown to compromise his earning capacity into the future and that he would most likely suffer damage to his cervical spinal cord within 1 to 4 years. For reasons given above I find that the ongoing migraine condition, being entirely attributable to the accident and not something from which there is any significant likelihood the plaintiff would have suffered otherwise, has substantially destroyed the earning capacity of this workman, vulnerable as he was by reason of his lack of breadth in work capabilities. I do not accept that the evidence of the medical specialists justifies a conclusion, to any degree of confidence or percentage chance, that he would in any event have sustained neurological damage within four years. If driven to apply a percentage chance estimate for such a short time frame I could not put it as more than 5%.

Past domestic care

The plaintiff advanced a claim for past domestic care, provided to him by his former partner Ms Jansen until the end of their relationship in February 2015. The period between 9 November 2012 and February 2015 has been broken up into stages, including periods when the plaintiff was hospitalised, and varying numbers of hours per week of assistance have been claimed for the respective stages.
I do not accept that any number of hours should be allowed for periods when the plaintiff was hospitalised. I have no doubt that Ms Jansen would have visited the plaintiff at those times and been attentive to him but I do not consider that there would have been “a reasonable need” for gratuitous care from her (within the meaning of s 15(2)(a) of the Civil Liability Act). The plaintiff was cared for in renowned hospitals on each occasion and there is no evidence that the nursing care had to be supplemented.
Ms Jansen gave evidence of the care she provided for the plaintiff when he was discharged from hospital in November 2012, from then until he was admitted for the spinal operation one year later, and again following his discharge and rehabilitation after that operation. The plaintiff and Ms Ching also described the nature and extent of care provided by Ms Jansen. His needs varied over the period from late November 2012 to about mid-2014. At times he needed assistance walking, particularly on slopes. He was unable to fulfil his share of household duties and Ms Jansen took up the shortfall. It was necessary for her to assist him with showering, dressing and other aspects of self-care during some periods when his balance was particularly poor. During periods when he suffered from severe migraine attacks everything about his self-care had to be done for him.
Estimates of how many hours this gratuitous domestic care may have required have been provided in elaborate reports by experts. Ms Jansen worked full-time as a schoolteacher during the relevant period and supplemented her income with weekend work at a hotel. The plaintiff’s disabilities throughout the relevant period called for assistance which is well described in the evidence, in general terms. For this the Court can make an estimate of hours required, based upon ordinary human experience aided by the expert opinions.
I accept the plaintiff’s case that between the plaintiff’s discharge from the rehabilitation hospital on 14 December 2012 and the end of February 2013, a period of 11.5 weeks, Ms Jansen’s necessary attention to his care would have required on average 1.5 hours per day. The plaintiff’s claim of half an hour per day from the beginning of March 2013 until he was admitted to hospital for surgery on 25 November 2013 (38.4 weeks) is also reasonable and justified on the evidence.
Upon discharge after his spinal surgery on 23 December 2013 Ms Jansen was again required to provide intensive domestic care. This was a period in which the plaintiff’s migraines became severe, extremely debilitating and near continuous. They remained very disabling until the Botox injections began to provide some relief in the second half of the year. The plaintiff claims 2 hours per day for 9.6 weeks up to 28 February 2014, reducing to half an hour per day thereafter. I accept those figures as supported by the evidence. The claim continues to 28 February 2015 but I do not consider it justified beyond 30 June 2014. I will allow for half an hour per day up to the end of June 2014. By that time the plaintiff’s balance had improved following the operation, to the point where he was able to commence attending the gym a little later in the year. I am satisfied he has been able to care for himself domestically from the second half of 2014.
The rate at which this care is claimed for is $29.98 per hour, which is not disputed. Upon the above findings the total amount to be allowed for past domestic care is $10,172.

Future commercial care

AEA concedes that the residual symptoms in the plaintiff’s neck require that his motor vehicle should be fitted with a panoramic mirror at a cost of $542 (rounded). I will award that as part of his damages but I do not consider that any present need for other mechanical aids or rehabilitation equipment has been shown. There has not been shown any present need for the provision of nursing or domestic assistance on a commercial basis into the future. The plaintiff is fragile and vulnerable because of the damage to his neck, with loss of capacity for heavy lifting and residual loss of balance. I have found that these ongoing disabilities have a significant impact upon his ability to perform the work in which he was formerly engaged but I do not accept that they have eroded to any degree his present capacity to perform the everyday physical functions of living alone.
An expert report of Ms Alach, an occupational therapist, was tendered in the plaintiff’s case. This was based upon an assessment of him made on 4 July 2017. On my reading of the report it demonstrates that he is fully capable of self-care in his own home. The only basis for Ms Alach recommending that he receive ongoing commercial care is that he may need it “for regular spring-cleaning, gardening and home maintenance when he moves to a larger home with a garden in the future”. I regard that requirement as so speculative as not to warrant any allowance in damages. Ms Alach has also calculated a cost of case management of his rehabilitation needs and of vocational rehabilitation. Approximately $31,000 is claimed for these items but I consider that an allowance of $10,000 as a contingency for such future expenses is all that can be justified on the uncertain forecast of the plaintiff’s future needs.

Past out-of-pocket expenses

The only past expenses which the plaintiff seeks to bring to account are the amounts expended by the workers compensation insurer and repayable to it. The amount to the date of judgment is $136,903.

Future medical expenses

With respect to future medical expenses, I accept the plaintiff’s claim for $130,235 to cover ongoing Botox injections in accordance with Dr Tisch’s prescription and prognosis. The plaintiff claims the cost of two consultations with a neurosurgeon per annum but this is not justified. Dr Winder did not support any such need. The plaintiff also claims for a visit to a general practitioner once every four weeks. Again this is unjustified. His continuing treatment by Dr Tisch will no doubt require the involvement of a general practitioner but an allowance for approximately two visits annually would appear ample. I will allow $2,500 for this, bringing the total for future medical expenses to $132,735.
The plaintiff also claims for ongoing medication at a rate of $20 per week, monthly physiotherapy sessions at a cost of $135 each and a “cushion” of $20,000 for remedial massage, gym membership and fitness programs. I do not consider that the evidence substantiates the need for any of these. He is not under a prescription for any medication apart from the Botox injections. I am unable to relate the proposed monthly physiotherapy sessions to his residual disabilities. His use of a gym is now recreational rather than rehabilitative. He has demonstrated (on film) that he is well able to use it without a “fitness program”.

Fox v Wood component

Based on figures provided by the workers compensation insurer current to the date of this judgment the amount of $24,496 must be allowed to the plaintiff as the amount of income tax he has incurred on his workers compensation weekly benefits: Fox v Wood (1981) 148 CLR 438; [1981] HCA 41.

Building Partners Pty Ltd claim under s 151ZD(1)(d)

Up to the date of this judgment the total of compensation paid to the plaintiff by the workers compensation insurer of Building Partners was $365,085.66. This includes the amount for medical expenses referred to at [198]. Building Partners is entitled to recover from AEA under s 151ZD(1)(d) of the Workers Compensation Act the amount of compensation it has paid, together with interest thereon (see Kwanchi Pty Ltd v Kocsis (1996) 40 NSWLR 270). Interest up to the date of this judgment is $ 67,999.

Damages total

The plaintiff is to be awarded damages comprising the following components:

Non-economic loss

$214,500

Past economic loss

$214,084

Past superannuation

$24,174

Future economic loss

$631,411

Future superannuation

$87,766

Past domestic care

$10,172

Equipment for future care and contingency for rehabilitation costs

$10,542

Past out-of-pocket expenses

$136,903

Future medical expenses

$132,735

Fox v Wood

$24,496

Total

$1,486,783

These reasons were originally published to the parties on 17 May 2018 and orders were then made in accordance with these reasons, incorporating figures for workers compensation payments which had been tendered by Building Partners Pty Ltd and which the Court was subsequently advised were in error. The figures have been corrected in the reasons now republished to give effect to the corrections, pursuant to r 36.16(3B) of the Uniform Civil Procedure Rules 2005 (NSW). The orders of 17 May 2018 have been vacated and replaced with the following orders.
The orders of the Court in proceedings no 2015/111482 are:

The orders pronounced 17 May 2018 are vacated and the following orders are made in lieu.

Judgment for the plaintiff, Raymond Wharekawa, against the defendant, AEA Constructions Pty Ltd for $1,486,783.

The defendant, AEA Constructions Pty Ltd, is to pay the costs of the plaintiff.

Any application by the plaintiff, Raymond Wharekawa, with respect to the scale at which costs are to be paid under the costs order in his favour is to be made by notice of motion to be filed within seven days with a supporting affidavit and any written submissions.

The defendant is to file any affidavit and/or submissions in response within a further 14 days.

Upon AEA Constructions Pty Ltd filing its affidavit and any submissions in response to such applications with respect to costs, it is to notify the associate to Fagan J if it wishes to be heard in oral argument in opposition to the orders sought.

The orders of the Court in proceedings no 2016/129877 are:

The orders pronounced 17 May 2018 are vacated and the following orders are made in lieu.

Judgment for the plaintiff, Building Partners Pty Ltd, against the defendant, AEA Constructions Pty Ltd for $433,084.66, being made up of recovery pursuant to s 151Z of the Workers Compensation Act 1987 (NSW) in the sum of $365,085.66, plus interest in the sum of $67,999, on payments of workers compensation.

Noted that payment by the defendant, AEA Constructions Pty Ltd, of the judgment in order 2 above will operate as a credit in the sum of $365,085.66 against the judgment in favour of the plaintiff, Raymond Wharekawa under order 2 made this day in proceedings no 2015/111482.

The defendant, AEA Constructions Pty Ltd is to pay the costs of the plaintiff Building Partners Pty Ltd, of the proceedings.

Any application by Building Partners Pty Ltd with respect to the scale at which costs are to be paid under the costs orders in their favour is to be made by notice of motion to be filed within seven days with a supporting affidavit and any written submissions.

AEA Constructions Pty Ltd is to file any affidavit and/or submissions in response within a further 14 days.

Upon AEA Constructions Pty Ltd filing its affidavit and any submissions in response to such applications with respect to costs, it is to notify the associate to Fagan J if it wishes to be heard in oral argument in opposition to the orders sought.

**********

Decision last updated: 22 May 2018

Medium Neutral Citation:	Wharekawa v AEA Constructions Pty Ltd; Building Partners Pty Ltd v AEA Constructions Pty Ltd [2018] NSWSC 684
Hearing dates:	6-14 November 2017, 16 November 2017, 8 December 2017
Date of orders:	22 May 2018
Decision date:	17 May 2018
Jurisdiction:	Common Law
Before:	Fagan J
Decision:	The orders of the Court in proceedings no 2015/111482 are: 1. The orders pronounced 17 May 2018 are vacated and the following orders are made in lieu. 2. Judgment for the plaintiff, Raymond Wharekawa, against the defendant, AEA Constructions Pty Ltd for $1,486,783. 3. The defendant, AEA Constructions Pty Ltd, is to pay the costs of the plaintiff. 4. Any application by the plaintiff, Raymond Wharekawa, with respect to the scale at which costs are to be paid under the costs order in his favour is to be made by notice of motion to be filed within seven days with a supporting affidavit and any written submissions. 5. The defendant is to file any affidavit and/or submissions in response within a further 14 days. 6. Upon AEA Constructions Pty Ltd filing its affidavit and any submissions in response to such applications with respect to costs, it is to notify the associate to Fagan J if it wishes to be heard in oral argument in opposition to the orders sought. The orders of the Court in proceedings no 2016/129877 are: 1. The orders pronounced 17 May 2018 are vacated and the following orders are made in lieu. 2. Judgment for the plaintiff, Building Partners Pty Ltd, against the defendant, AEA Constructions Pty Ltd for $433,084.66, being made up of recovery pursuant to s 151Z of the Workers Compensation Act 1987 (NSW) in the sum of $365,085.66, plus interest in the sum of $67,999, on payments of workers compensation. 3. Noted that payment by the defendant, AEA Constructions Pty Ltd, of the judgment in order 2 above will operate as a credit in the sum of $365,085.66 against the judgment in favour of the plaintiff, Raymond Wharekawa under order 2 made this day in proceedings no 2015/111482. 4. The defendant, AEA Constructions Pty Ltd is to pay the costs of the plaintiff Building Partners Pty Ltd, of the proceedings. 5. Any application by Building Partners Pty Ltd with respect to the scale at which costs are to be paid under the costs orders in their favour is to be made by notice of motion to be filed within seven days with a supporting affidavit and any written submissions. 6. AEA Constructions Pty Ltd is to file any affidavit and/or submissions in response within a further 14 days. 7. Upon AEA Constructions Pty Ltd filing its affidavit and any submissions in response to such applications with respect to costs, it is to notify the associate to Fagan J if it wishes to be heard in oral argument in opposition to the orders sought.
Catchwords:	TORTS – negligence – personal injury – plaintiff struck by nail from nail gun fired through wall at construction site – no warning given prior to shot – whether risk “not insignificant” within meaning of Civil Liability Act 2002 (NSW) (“CLA”), s 5B(1)(f) – whether risk “obvious” within meaning of CLA, s 5F – scope of exemption from duty to warn of obvious risk under CLA, s 5H – whether risk “inherent” within meaning of CLA, s 5I – whether plaintiff contributorily negligent – whether breach of duty by employer in failing to warn plaintiff – whether injury and incapacity to work would have materialised due to pre-existing conditions in any event – judgment for plaintiff
Legislation Cited:	Civil Liability Act 2002 (NSW) Evidence Act 1995 (NSW) Superannuation Guarantee (Administration) Act 1992 (Cth) Workers Compensation Act 1987 (NSW) Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420; [2009] HCA 48 Angel v Hawkesbury City Council [2008] NSWCA 130; (2008) Aust Torts Reports 81-955 Cox v Fellows [2013] NSWCA 206 Fox v Wood (1981) 148 CLR 438; [1981] HCA 41 Garzo v Liverpool/Campbelltown Christian School [2012] NSWCA 151 Glad Retail Cleaning Pty Ltd v Alvarenga (2013) 86 NSWLR 191; [2013] NSWCA 482 Grills v Leighton Contractors Pty Ltd [2015] NSWCA 72 Kondis v State Transport Authority (1984) 154 CLR 672; [1984] HCA 61 Kwanchi Pty Ltd v Kocsis (1996) 40 NSWLR 270 Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20 Metro North Hospital and Health Service v Pierce [2018] NSWCA 11 Najdovski v Crnojlovic (2008) 72 NSWLR 728; [2008] NSWCA 175 Neindorf v Junkovic (2005) 80 ALJR 341; [2005] HCA 75 Purkess v Crittenden (1965) 114 CLR 164; [1965] HCA 34 Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330; [2007] HCA 42 Seltsam Pty Limited v Ghaleb [2005] NSWCA 208 Shaw v Thomas [2010] NSWCA 169 Vairy v Wyong Shire Council [2005] HCA 62 Watts v Rake (1960) 108 CLR 158; [1960] HCA 58 Wyong Shire Council v Shirt (1979) 146 CLR 40; [1980] HCA 12
Texts Cited:	Mr D Villa, Annotated Civil Liability Act 2002 (NSW), 3rd Ed, Lawbook Co, Sydney, 2018
Category:	Principal judgment
Parties:	Raymond Wharekawa (plaintiff) AEA Constructions Pty Ltd (first defendant/cross-claimant) Building Partners Pty Ltd (plaintiff/cross-defendant)
Representation:	Counsel: Mr David Higgs SC/Mr David Campbell SC/Mr Andrew Davis (plaintiff, Wharekawa) Mr Morris SC/Mr John Catsanos (plaintiff/cross-defendant, Building Partners) Mr John Maconachie QC/Mr Mitchell Davis (first defendant/cross-claimant) Solicitors: Leslie Heinrich, RMB Lawyers (plaintiff, Wharekawa) Stephen Lee, Stephen Lee Legal (plaintiff/cross-defendant, Building Partners) Bryan McMahon, McMahons Lawyers (defendant)
File Number(s):	2015/111482; 2016/129877

Period	Number of weeks	Rate $	Extension $
10.11.2012 to 9.11.2013	48	846	40,608
10.11.2013 to 9.11.2014	48	863	41,424
10.11.2014 to 9.11.2015	48	840	40,320
10.11.2015 to 29.04.2016	20	858	17,160
30.04.2016 to 29.04.2017	48	1,002	48,096
29.04.2017 to trial	26	1,023	26,598
Total	$214,206

Non-economic loss	$214,500
Past economic loss	$214,084
Past superannuation	$24,174
Future economic loss	$631,411
Future superannuation	$87,766
Past domestic care	$10,172
Equipment for future care and contingency for rehabilitation costs	$10,542
Past out-of-pocket expenses	$136,903
Future medical expenses	$132,735
Fox v Wood	$24,496
Total	$1,486,783