Zhang v Golden Tape Constructions Pty Ltd
[2009] VCC 548
•20 May 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
Case No. CI-08-00534
| CONG SHENG ZHANG | Plaintiff |
| v | |
| GOLDEN TAPE CONSTRUCTIONS PTY LTD | First Defendant |
| and | |
| THE INTERCON GROUP PTY LTD | Second Defendant |
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| JUDGE: | HIS HONOUR JUDGE SACCARDO |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 24-27, 30-31 March and 1-3 April 2009 |
| DATE OF JUDGMENT: | 20 May 2009 |
| CASE MAY BE CITED AS: | Zhang v Golden Tape Constructions Pty Ltd & Anor |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 0548 |
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REASONS FOR JUDGMENT
Catchwords: Negligence – duty of care of occupier and employer – whether contract of service existed – whether injury arose in course of employment – breach of duty of care – contributory negligence – apportionment.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J B Richards SC with | Victorian Compensation |
| Mr M J Walsh | Lawyers | |
| For the First Defendant | Mr R J Stanley QC with | Minter Ellison |
| Ms B Knoester | ||
| For the Second Defendant | Mr A W Middleton | Norris Coates |
| HIS HONOUR: |
The Claim
1 On 6 June 2002, the plaintiff, who was then forty-four years of age, suffered injury when he fell from a height slightly in excess of 3 metres through a stairwell void at 7 Marine Avenue, St Kilda whilst working in the course of his trade as a plasterer (“the incident”).
2 The plaintiff seeks damages from the defendants in respect of the incident. The defendants in turn deny liability to the plaintiff and allege contributory negligence on the part of the plaintiff. The defendants have also filed contribution proceedings against each other.
3 The plaintiff has alleged against the first defendant (Golden Tape) that his injury was occasioned by reason of the breach by Golden Tape:
(i) of a duty of care owed to the plaintiff as his employer; or alternatively (ii) of a duty owed to the plaintiff pursuant to the provisions of the scaffolding regulations; or alternatively (iii) of a general duty of care owed by Golden Tape to the plaintiff. 4 Against the second defendant (Intercon), the plaintiff asserts that his injuries were occasioned by reason of the breach by Intercon:
(i) of the duty owed by Intercon to the plaintiff as the occupier of the premises; (ii) of a duty owed to the plaintiff pursuant to the provisions of the Occupational Health & Safety Act 1985. 5 Each of the defendants makes an allegation of contributory negligence against the plaintiff in the terms set out in their respective Defences.
6 While there is no significant conflict in the evidence as to the precise circumstances in which the plaintiff suffered his injury, the circumstances which led to the happening of the incident, and in particular:
•
the nature of the scaffolding with which the plaintiff was provided in order to perform the work he was carrying out at the time of the happening of the incident;
•
the capacity in which the plaintiff came to be performing the work he was undertaking at the time of the happening of the incident;[1]
[1] The particular issue which arises in this regard is whether the plaintiff was at the time at which he was injured an employee of Golden Tape.
are matters of considerable dispute.
The Work Being Undertaken at 7 Marine Avenue, St Kilda
7 Intercon, a building company, entered into a cost plus contract to construct four residential units at 7 Marine Avenue, St Kilda (“the site”). As part of the contract, Intercon supplied carpenters for the work to be undertaken at the site and thereafter sub-contracted out all other trade work to be performed on the site.
8 Golden Tape won the sub-contract for the plastering works to be undertaken at the site. Pursuant to the sub-contract agreement between Intercon and Golden Tape, Golden Tape undertook to provide all materials and labour necessary for completing the plasterwork required on the site.
9 At the time at which the sub-contract was awarded to Golden Tape, Mr Yong Jun Xu was a director of Golden Tape.[2]
[2] Essentially the company operated through Mr Xu and he was responsible for negotiating the sub- contract agreement between Golden Tape and Intercon, together with the performance of all the work activities undertaken by Golden Tape at the site.
10 The site comprised four units which were being constructed virtually simultaneously. Golden Tape placed plastering teams within each of these units. For the purpose of assembling a team to undertake the plastering works required within Unit 4, Mr Xu contacted Mr Jimmy Su, a plasterer who had previously worked for Golden Tape at a number of different work sites. Mr Su thereafter contacted the plaintiff and another plasterer, Ye Scheng Liang,[3] to work with him in performing the plastering work which was required to be undertaken in Unit 4.
[3] Both the plaintiff and Mr Liang were plasterers with whom Mr Su had previously worked.
11 The nature of the arrangement between Mr Su, Golden Tape and the plaintiff, pursuant to which the plaintiff came to work at the site, is a matter in dispute which I will deal with subsequently in these reasons for judgment. There is no dispute however as to the following facts:
(i) Intercon was the head contractor at the site;
(ii) Intercon employed Mr Paul Campbell as its site manager. Mr Campbell’s duties involved general supervision of the site, including the induction of the workers employed by the various sub-contractors who were carrying out work at the site;
(iii) Whilst there is some dispute as to the precise terms of the contract entered between Golden Tape and Intercon, it is not in dispute that Golden Tape undertook the responsibility of liaising with the plasterers which it brought onto the site and inspecting the quality of the plastering work;
(iv) It was the responsibility of Intercon to provide all scaffolding which was required by the various trades whilst they were working on site. Mr Campbell undertook the personal responsibility for the supply, erection, modification and removal of scaffolding which was to be used on the site. This responsibility extended to the provision of all scaffolding required by the plaintiff, Mr Su and Mr Liang (the three plasterers) whilst they were engaged in erecting plaster within Unit 4.[4]
[4] Mr Campbell had instigated a system in which no scaffolding was to be erected, or altered in any way, without the involvement of Mr Campbell. This did not include the movement of pre-assembled mobile scaffolding however or the erection of simple work platforms consisting of A-frame scaffolding and planks.
The Floor Plan of Unit 4
12 Unit 4 comprised a two-storey unit. The height difference between the ground floor and the first floor of the unit was approximately 3.2 metres. The first floor of the unit was of solid construction and contained a rectangular stairwell void (“the void”) which would eventually accommodate stairs leading from the ground floor to the first floor. Throughout the time during which the plaintiff was on site and working within the unit, the stairs had not been installed in the void. In the circumstances, the void presented as a rectangular opening in the first floor from which there was a drop of 3.2 metres to the ground floor. In the absence of appropriate guarding, the only solid structure preventing access to the void from the first floor was an internal wall which effectively formed one boundary of the void (the boundary wall).
The Circumstances in which the Incident Occurred
13 No issue arises as to the circumstances in which the incident occurred. Immediately before the incident the plaintiff was undertaking plastering work upon the boundary wall. In order to undertake this work, the plaintiff was standing on a work platform consisting of wooden planks (“the work platform”). The configuration of the planks was such that one plank (“the supporting plank”) had been placed across the void and positioned effectively at a right angle to the boundary wall. The supporting plank rested upon and was supported at one end by the surface of the first floor. The other end of the supporting plank was sitting upon and was supported by a top plate (“the top plate”) which formed part of the timber framing of the boundary wall. The overhang between the end of the supporting plank and the top plate was approximately 90 millimetres.[5]
[5] T 756
14 Erected at right angles to the supporting plank, so that they were located immediately next to and ran parallel to the boundary wall, were a number of planks which were resting upon and supported at one end by the surface of the first floor, and at the other end by the supporting plank.[6]
[6] The diagram which is the plaintiff’s Exhibit B and Exhibit L illustrates the way in which the planks were configured.
15 The crucial factor upon which the structural integrity of the work platform depended was the security of the supporting plank.[7] With an overhang of only 90-millimetres over the top plate, and in the absence of any method being employed to secure the supporting plank to the top plate, there was a risk that the supporting plank could be dislodged from the top plate, with the result that the whole structure would collapse.
[7] T 743
16 The plaintiff described the incident as occurring when, whilst he was standing on the work platform above the void for the purpose of working upon the boundary wall, the work platform suddenly collapsed.[8]
[8] T 58. This evidence was not challenged by the defendants.
17 Neither Mr Liang nor Mr Su saw the incident. Their evidence however was consistent with the evidence given by the plaintiff as to the task which the plaintiff was performing immediately before the incident.
18 Mr Su described the plaintiff’s fall in the following terms:
“I heard him yell. (Indistinct) you know, loud noise. Person and wood fell
down together.”[9]
(sic)
[9] T 242
19 Whilst an issue arises for my determination as to the nature of the scaffolding and fall protection which had been erected in the void by Mr Campbell for the use of the three plasterers, there is no issue:
• that the plaintiff suffered injury in the circumstances described by him; •
that the work platform which the plaintiff was using at the time of the incident was set up in the manner in which I have previously described.
20 It was not suggested by any witness who was called to express an opinion as to the safety of the work platform that it constituted a safe or appropriate work platform.[10] However, it was put on behalf of Intercon that:
[10] The evidence of Mr Lightfoot on this issue was not the subject of challenge. Mr Xu did not consider the platform to constitute an appropriate scaffold from which it was safe to work: T 616. Mr Campbell clearly did not consider the system of planks to be one which was appropriate to work on or from: T 743. I find that the concession made by Mr Campbell at line 2 to be applicable whether I accept the evidence of Mr Campbell as to the reason for which the fall platform had been erected, namely as fall protection or whether it had been erected as a work platform. In either instance the supporting plank would have the same overhang having regard to the juxtaposition of the top plate and the adjacent wall.
(i) the three plasterers disassembled a sophisticated scaffold which had been erected for their use whilst working above the void; (ii) the plaintiff chose to employ an unsafe system to gain access to the work he was performing at the time of the incident; (iii) the plaintiff so acted in the absence of the knowledge of Mr Campbell and against his express instructions that no alterations should be made to the scaffolding which had been erected at the site. 21 I will now deal with the conflict which arises between the evidence of Mr Campbell and that adduced on behalf of the plaintiff as to the nature of the scaffolding which had been erected by Intercon to protect the void whilst the three plasterers were engaged in their plastering work in Unit 4.
The Evidence Adduced on behalf of the Plaintiff as to the Scaffolding Erected for his use by Intercon
22 The plaintiff described the work platform as being in position when he arrived on site and as remaining in position throughout the period in which he was working on site up to the time of the happening of the incident.[11]
[11] T 54-T55; T 87
23 Mr Su gave similar evidence as to the work platform, both with respect to its design and the period of time during which it had been in position.[12]
[12] T 240; T 244
24 Mr Liang described the work platform as being already erected at the time at which he entered the site.[13]
[13] T 337
25 Mr Xu did not contradict the evidence of the three plasterers as to the design of the work platform or the period of time during which it was in position on site.
The Evidence of Mr Campbell as to the Scaffolding which had been erected in the Void
26 Mr Campbell was employed by Intercon as the site supervisor. He was the last witness to give evidence during the trial.
27 In the course of his evidence, Mr Campbell described the way in which the void was protected from the time at which the plaintiff first entered onto the site until approximately two hours before the plaintiff’s incident[14] in the following terms:
[14] this being the time at which Mr Campbell last observed the condition of the void immediately before the plaintiff’s incident.
•
Unit 4 had been prepared for the plasterers so that it was a spotless work environment which was for the exclusive use of the plasterers until their work was completed.[15]
•
In the course of preparing Unit 4 for the plasterers, Mr Campbell had erected a scaffold in the void (“the scaffold”) which had been surrounded by hardwood planks positioned to provide for fall protection in such a manner that from the first floor of the unit the opening of the void was completely enclosed either by the presence of the scaffold or the fall protection constituted by the planks which surrounded it.[16]
•
The opening of the void remained protective in this way throughout the period during which the three plasterers were on site. On the last occasion upon which Mr Campbell had inspected the void, approximately two hours prior to the occurrence of the incident, the scaffold and fall protection remained in the state described above.[17]
[15] T 740
[16] T 741
[17] T 744-T 745
28 Mr Campbell gave evidence that:
•
Upon being alerted of the happening of the incident he entered the unit and found that the scaffold had been dismantled and stacked along the north side of the hallway;
•
That a number of planks which had constituted the fall protection had also been removed.[18]
[18] T 746
Findings as to the Scaffolding Erected in the Void by Mr Campbell
29 Having regard to the evidence given by Mr Campbell:
• that no workmen were authorised to make alterations to the scaffold without his involvement; and • that Unit 4 was being exclusively occupied by the plaintiff and his co- workers at the time of the happening of the incident, the only way in which Mr Campbell’s evidence as to the dismantling of the scaffold could be interpreted was that this activity was undertaken by the plaintiff and his co-workers. It follows that the effect of this activity was to turn what was a very safe environment in which to work into one which was potentially dangerous.
30 By the time Mr Campbell gave his evidence, the plaintiff, Mr Su, Mr Liang and Mr Xu had all given evidence that, throughout the time during which the three plasterers were on site, the only work platform erected in the void was one which consisted of planks as described by the plaintiff in his evidence.[19]
[19] T 54
31 Whilst Mr Middleton, who appeared for Intercon, put to both the plaintiff and Mr Su that, two hours before the incident a mobile scaffold was positioned in the void.[20] It was never put, prior to Mr Campbell giving evidence, that:
[20] Both witnesses denied this allegation; T 110-T 270.
• the scaffold had been present in the void throughout the time at which the plaintiff was working in Unit 4; • the void was ever protected by the presence of the scaffold and planks so as to result in the void being completely enclosed and protected. 32 I do not accept the evidence given by Mr Campbell on this issue. As a matter of logic the evidence makes little sense. The acceptance of the evidence would require me to accept that:
• the plaintiff and his co-workers dismantled the scaffold and some of the planks erected as fall protection contrary to instructions previously given to them by Mr Campbell; • the plaintiff employed a potentially unsafe system of gaining access to the area in which he was required to work in preference to a system which was safe, namely that installed by Mr Campbell. 33 That this occurred is improbable for the following reasons:
(i)
If an alteration to the scaffold was required to allow the plaintiff to gain access to the area in which he was to work, there was no reason why the three plasters could not have sought the assistance of Mr Campbell to make such an alteration. Any language difficulty which arose in this regard could have been dealt with through Mr Xu.[21]
(ii)
Although there is no evidence on this point, it seems likely that the disassembling of the scaffold and a number of the planks which had been erected as fall protection would be a task which would have taken some time. I can see no reason why the three plasterers would have been moved to do this. If the plaintiff could only gain access to the boundary wall by standing on the planks providing fall protection, there would be no need to remove the scaffold and some of the planks which had been positioned by Mr Campbell in order to do this.
[21] It was Mr Campbell’s evidence that such alterations had previously been undertaken in the course of the work: T 744.
34 I formed the impression that the plaintiff was a witness whose evidence was reliable. The plaintiff’s evidence as to the existence of the work platform was supported by the evidence of Mr Su, Mr Liang and, to some extent, Mr Xu. The evidence of these witnesses cannot be reconciled with the evidence given by Mr Campbell.
35 I do not accept the evidence given by Mr Campbell as to the nature of the scaffolding and fall protection which he erected in the void. I prefer and accept the evidence given by the plaintiff and his co-workers, that at all material times whilst they were on site the stairwell void was in the condition described by the plaintiff in his evidence.[22]
[22] T 54
36 In arriving at this finding I invoke the rule in Browne v Dunn (1893) 6 R 67 (HL) to assist me in reaching the conclusion which I have arrived at. I do not however consider the application of the rule as being a necessary ingredient to the making of the finding.
37 Finding as I have that the incident occurred in the circumstances described by the plaintiff, it follows that the work platform from which the plaintiff was working immediately before the incident constituted an unsafe work platform which had been erected for his use by Mr Campbell. Insofar as it was clearly accepted by Mr Campbell that it was the obligation of Intercon to provide appropriate scaffolding and work platforms for the workers on site, including the plaintiff, the failure by Intercon to provide such a platform for the use of the plaintiff at the time of the incident clearly establishes the liability of Intercon with respect to the incident.
The Evidence of Mr Yong Jun (Charlie) Xu
38 In the course of the trial the credit of Mr Xu was put in issue by the plaintiff and Intercon.
39 Having regard to:
(i) the relevance of the evidence of Mr Xu to virtually all the issues which arise with respect to liability and contribution; (ii) the conflict which exists between the evidence of Mr Xu and the evidence of the plaintiff, the plaintiff’s two co-workers and Mr Campbell,
I find it convenient at this time to deal with the issues which arise as to the evidence and credit of Mr Xu.
40 It was the evidence of Mr Xu that, having succeeded in winning the sub- contract to undertake the plastering work at the site, Golden Tape:
(i)
retained the obligation to provide all materials required to perform the plastering work;
(ii)
sub-contracted the labour involved in the performance of the plastering work to various sub-contracting teams.
41 It was Mr Xu’s evidence that one of those teams was assembled by Mr Su and that the plaintiff suffered his injury in the course of performing work as part of that team. In the circumstances Golden Tape denies that it was ever the employer of the plaintiff whilst he was working on the site
42 The nature of the relationship which existed between Mr Xu and each of the three plasterers is hotly in dispute.
43 The plaintiff alleges he was an employee of Golden Tape. Mr Su denies entering into any sub-contracting arrangement with Golden Tape and asserts that he was an employee of Mr Xu whilst on site. Mr Liang also asserts that he was an employee of Mr Xu whilst on site.
44 It was asserted by both the plaintiff and Intercon, that Golden Tape had falsely denied employing the plaintiff and had invented (after the plaintiff’s injury), the existence of a sub-contract agreement between Mr Xu and Mr Jimmy Su. It was further put that this was done in order to protect Golden Tape from the fact that it had no insurance to cover the plaintiff’s claim with respect to the incident which was based on the plaintiff’s allegation that he was an employee of Golden Tape.
45 In developing the attack upon Mr Xu’s credit, the following issues were canvassed:
(i)
It was put to Mr Xu that before the plasterwork at the site commenced, he had offered to Mr Campbell what was effectively a bribe[23] to turn a blind eye to any defects in the works undertaken by Golden Tape on the site. Mr Xu did not deny the making of the so-called “offer”, suggesting that this may have occurred and that it was justified as being a business technique;[24]
(ii)
It was put that, upon discovering that the ceiling plaster which had been installed on the project was incorrect and that it had to be removed and replaced by Golden Tape at its own cost, Mr Xu offered Mr Campbell $10,000 to approve the work without any rectification being undertaken. I interpreted the evidence of Mr Xu[25] to be a concession that this had in fact occurred;
(iii)
It was asserted that Mr Xu had falsely prepared invoices[26] and a contract (“the Su Contract”)[27] after the happening of the incident, for the purpose of creating the impression that Mr Su had entered into a sub- contract agreement with Mr Xu to perform the work in the course of which Mr Su had engaged the plaintiff.
[23] The value of 2 per cent of the contract price payable to Golden Tape for performing the work at the site was the subject of the offer made by Mr Xu to Mr Campbell
[24] T 652
[25] T 653
[26] Exhibit K, invoices 65-70
[27] Golden Tape’s Exhibit G
Mr Xu accepted that both the Su Contract and the relevant invoices
were prepared after the happening of the incident. He said:
•
That the invoices were written up by him after the incident because Mr Su could not write in English.
•
That it was his usual practice to write-up invoices to Golden Tape in Mr Su’s invoice book on Mr Su’s behalf, and thereafter to tender payment with respect to those invoices and that this was the approach he had adopted in creating the invoices in question.[28]
[28] Mr Xu, however, had no explanation for the term “contract price” appearing in each of the relevant invoices and for the absence of those words in earlier invoices which had been prepared for Golden Tape (see Exhibit K, Invoices 50 and 51 and compare those with Exhibit K, invoices 65-70).
The following issues arise which call into question the veracity of the
evidence given by Mr Xu as to the invoices and the Su Contract.
•
No explanation was provided by Mr Xu for the fact that the Su Contract[29] was only prepared and sought to be executed after the occurrence of the plaintiff’s injury.[30]
•
Mr Xu sought to explain the fact that this was the first occasion upon which a contract had been prepared by Golden Tape for the signature of Mr Su (notwithstanding the fact that Mr Su had worked for Golden Tape on a number of prior occasions) by stating that the work done by Mr Su for Golden Tape on those previous occasions involved small jobs.[31] I did not find his evidence on this issue convincing.
•
It was the evidence of Mr Su that the first time he had seen the Su Contract was shortly before the commencement of the trial. He said that what was purported to be his signature on the Su Contract was not his signature. In support of that evidence:
[29] Exhibit G
[30] T 619; T 647; T 673
[31] T 674
ƒ a copy of Mr Su’s licence was exhibited in which his
signature is constituted merely by the printed word “Jimmy” and Mr Su gave evidence that when signing documents he did not sign with the words “Jimmy Su”;[32]
[32] T 251
ƒ Mr Su’s wife gave evidence that the purported signature of
her husband on the Su Contract was not his signature.
(iv) Mr Xu asserted that the contract was signed by Mr Su and that it was executed by Mr Su in the presence of Mr Xu, the wife of Mr Xu and the wife of Mr Su.[33]
[33] T 648
Given the obvious differences which appear between the signature of Mr Su in Exhibit F when compared with the signature appearing in the Su Contract, and the evidence given by Mr Su and his wife that the signature in the Su Contract is not that of Mr Su, I reject the evidence of Mr Xu on this point.
(v) It was accepted by both Mr Su and Mr Xu that:
• following the incident, Mr Xu tendered to Mr Su a cheque for approximately $3,600 in payment for the work undertaken by Mr Su, the Plaintiff and Mr Liang at the site, and that the cheque was not accepted by Mr Su. • in refusing the cheque, Mr Su denied any obligation to pay the plaintiff and Mr Liang for the work they had performed on site. Mr Xu gave evidence that, following the refusal of Mr Su to accept the cheque, Mr Xu sent two business associates, Mr Gao and Mr Hui Zang, to re-offer the cheque to Mr Su. He said that he took this course in order to be able to prove to members of the Chinese community that he had offered a cheque to Mr Su, which had been refused.[34] Upon the refusal of Mr Su to accept the cheque when it was offered by Mr Zang, a document was prepared by Mr Xu[35] entitled “Confirmation/Declaration” which was purported to certify that Golden Tape had sub-contracted the plaster work to be undertaken at the site to Mr Su. Whilst this document was signed by Mr Zang, there was no evidence to explain how Mr Zang was in a position to make such an assertion. [34] T 709; T 711
[35] First defendant’s Exhibit 4
46 I do not accept the evidence of Mr Xu, that the only purpose of the engagement of Mr Zang to deliver the cheque to Mr Su was for the purpose of obtaining a witness to the tendering of the money. Rather I find it more likely that the primary purpose of the arrangement was to employ Mr Zang to support the assertion that Mr Su was a sub-contractor in circumstances in which the absence of WorkCover insurance was a real issue.[36]
[36] See the evidence at T 670. I note in this regard that it was accepted by Mr Su that the document signed by Mr Zang had been prepared by Mr Su: T 712. I note further that Mr Su sought to rely on the document in his submission to the WorkCover Authority that the plaintiff was not his employee.
47 Having regard to the admission by Mr Xu that he attempted to induce Mr Campbell to act dishonestly to the detriment of his employer, and to the potential peril of any future occupier of Unit 4,[37] by offering Mr Campbell a considerable sum of money, a serious issue arises as to whether Mr Xu was a witness whose evidence could be relied upon.
[37] Mr Campbell gave evidence that if the ceiling plaster was not replaced there was a danger that it would eventually collapse.
48 When account is taken of:
•
the preparation of the Su Contract by Mr Su[38] which contains a signature which I find is not that of Mr Su, and the attempt by Mr Xu to rely upon the contract in the course of his representations made to the WorkCover Authority;
•
the preparation of invoices by Mr Xu after the incident which contain the term “contract price”;[39]
• the action of Mr Xu in commissioning the so-called “declaration”,[40] [38] Exhibit G
[39] The inclusion of the term “contract price” appearing in these invoices and the absence of those words in a previous invoice prepared by Mr Xu (Exhibit K, Invoice 51) suggests that Mr Xu was seeking to manufacture evidence which supported the existence of a sub-contract relationship.
[40] First defendant’s Exhibit 4
I am driven to the conclusion that Mr Xu was a totally unreliable witness who was prepared to distort the truth for his own purpose. I have so little faith in Mr Xu as a witness of truth that I am not prepared to accept any evidence given by him unless it is corroborated by other evidence or circumstances which I find to have been established.[41]
[41] In this regard I also note that Mr Xu’s assertion that Mr Su agreed to enter a sub-contract agreement is totally inconsistent with Mr Su’s evidence (which I accept) that he did not possess the relevant skill to quote for a job, that he had never previously, in Australia or China, employed any person and he did not have a cheque account. Further, the assertion by Mr Xu that not only on this occasion but on all previous occasions he had employed Mr Su as a sub-contractor and that Mr Su worked for a fixed price, is inconsistent with the evidence given by Mr Xu that he prepared invoices to Golden Tape on behalf of Mr Su using a diary book in which he recorded the days and hours worked by Mr Su in order to work out to pay him (T 621) This conduct seems totally inconsistent with the existence of a sub- contract agreement between Mr Xu and Mr Su pursuant to which Mr Su would be paid on the basis of a fixed price.
The Method Employed to undertake the Fixing of the Ceiling over the Void
49 A conflict in the evidence between the three plasterers, Mr Campbell and Mr Xu, arises as to the method employed to fix the plaster ceiling of the second floor which was located over the void.
50 It was the evidence of the plaintiff, Mr Su and Mr Liang, that in order to gain access to the ceiling above the void for the purpose of affixing plaster, a mobile scaffold which was located on the first floor had been positioned with two legs of that scaffold being located on the surface of the first floor and two legs being located on the work platform.
51 It was the evidence of the plaintiff and his co-workers that the mobile scaffold was stabilised by Mr Xu and Mr Campbell whilst it was located on the work platform.[42]
[42] The plaintiff and Mr Su described Mr Xu as also being present in performing this task, however Mr Liang was uncertain as to whether Mr Xu was present. Each of the workers described Mr Campbell as being present and as performing this task.
52 Mr Xu denied any knowledge of the mobile scaffold being positioned in such a manner. His evidence made it clear that he considered the work platform to be unsuitable to work upon and unsafe to support one end of the mobile scaffold.[43]
[43] T 616-T 617
53 Mr Campbell was firmly of the view that the planks which he described as being located in the void for fall protection were not secured and were not safe to be used as a work platform.[44] He denied categorically that he would have allowed a mobile scaffold to be supported by the planks.[45]
[44] T 743
[45] T 748
54 Generally I found both the plaintiff and Mr Liang to be particularly impressive witnesses. The plaintiff was prepared to make concessions to his detriment and it was not suggested by any party to the proceeding that he was other than a witness of truth. Mr Liang, both in his demeanour and the evidence that he gave, was no less an impressive witness than the plaintiff. Whilst Mr Su was clearly uncomfortable whilst giving evidence, I put this down to the difficulty of a witness who was illiterate in English, in coping with the atmosphere of the courtroom. My impression of these three witnesses was that each of them was a reliable witness and I accept the evidence given by them as to the use of the work platform to support the mobile scaffold.
55 For reasons expressed earlier, insofar as there is any conflict between the evidence of Mr Xu, and that given by the plaintiff and his co-workers, I prefer the latter evidence. In these circumstances, I accept the evidence called by and on behalf of the plaintiff, that one end of the mobile scaffold was supported by the work platform when the ceiling above the void was worked on by the plasterers and that Mr Xu was present when this occurred.
56 It does not follow that, by reason of the fact that I have rejected Mr Campbell’s evidence as to the erection of the scaffold and fall protection in the void, I should reject his evidence that he would not have allowed one end of the mobile scaffold to be supported by the work platform, and that he was not present when this occurred.
57 Having regard however to the finding which I have made that I cannot accept the evidence given by Mr Campbell as to the way in which the void was protected during the time when the plaintiff and his two workmates were on site, I have no confidence in the evidence given by Mr Campbell that he was not present at the time of, and had no knowledge of, the positioning of one end of the mobile scaffold upon the work platform. Upon this issue, I prefer and accept the evidence of the plaintiff, Mr Liang and Mr Su, that Mr Campbell was present and assisted in stabilising the scaffold.
58 It follows from the findings that I have made that before the incident occurred, both Mr Campbell and Mr Xu were aware of the existence of the work platform, knew that it was an inappropriate means of gaining access to areas which were to be worked upon over the void, and acquiesced in the use of the platform for work which was to be done over the void.
Was Golden Tape the Plaintiff’s Employer?
59 The plaintiff alleges that the incident occurred whilst he was working in the course of his employment with Golden Tape.
60 The existence of an employer-employee relationship between the plaintiff and Golden Tape is denied by Golden Tape, which alleges that it had sub- contracted the plastering work to be undertaken at Unit 4 to Mr Jimmy Su, who had thereafter arranged the plaintiff’s attendance on the site pursuant to that sub-contract agreement.
61 The evidence relevant to the existence of an employment relationship between the plaintiff and Golden Tape to which I have not already referred may be summarised as follows:
The Plaintiff’s Evidence
62 The evidence given by the plaintiff was as follows:
•
The plaintiff was contacted by Mr Jimmy Su and was told that a company had work available for plasterers at a site in St Kilda. Following this conversation, the plaintiff, together with Mr Su and another worker, Mr Liang, made their way to the site in a car driven by the plaintiff.
•
Before attending the site, at no time did the plaintiff ever discuss with Mr Xu the location of the job, what was involved in the job, or his pay rate.[46]
•
When he had been approached by Mr Su, the name of the company which required plasterers at the site was not mentioned. It was the plaintiff’s belief that the company was owned by an Australian[47] and that his employer was the company of the whole project.
•
The plaintiff drove his vehicle, in which Mr Su and Mr Liang were passengers, to the site on the day that he commenced work there. At the same time he took with him his work tools.[48]
•
The three plasterers arrived at the site at approximately 7.00 am on Monday, 3 June 2002, where they met Mr Campbell, who was described by the plaintiff as the foreman and the boss.[49]
•
Mr Campbell directed the three plasterers to a double-storey building (Unit 4), upon which they commenced to work in fixing plaster, firstly to the first floor and thereafter to the ground floor.
•
Mr Xu attended the site every day, often with Mr Campbell. The plaintiff described him as “the boss of us, you know, working as plasterer”.[50]
•
From time to time Mr Campbell would give the three plasterers instructions and these would be interpreted by Mr Xu.
• Instructions given to the plaintiff by Mr Campbell included the following: [46] T 84
[47] T 92
[48] T 92
[49] T 53
[50] T 96
(i) The work needed to be done quickly;
(ii) The job was to be done properly;
(iii) The workers should not rest;
(iv) The workers should not smoke cigarettes.
•
The plaintiff considered Mr Campbell to be in charge of the whole operation. Mr Campbell would check the work that was being performed and the plaintiff understood that the work had to be done to his satisfaction.[51]
•
Prior to his incident, the plaintiff had never heard the name Golden Tape and was unfamiliar with that entity. In these circumstances, he never regarded Golden Tape as his employer.[52]
[51] T 86
[52] T 97-T 98
The Evidence of Jimmy Su
63 The evidence of Mr Su was as follows:
•
Mr Xu contacted him with respect to the job at Marine Avenue and told him that there was a job available and that he should find two more people to work with him.[53] It was Mr Su’s belief that Mr Xu was the person who would be employing him on this job.
•
At the time at which he was first contacted by Mr Xu, Mr Su was told nothing about a payment to himself, the plaintiff or Mr Liang.
•
Mr Su accepted that when he attended the site he was to bring his own tools.
•
At the time Mr Su and his co-workers arrived on the site, Mr Xu was not present.[54]
•
Whilst on the site, Mr Su saw both Mr Xu and Mr Campbell on a daily basis. He described Mr Xu as being responsible to the project boss, who was Mr Campbell.
•
Whilst on the job, Mr Xu would attend the site and check the work. He had instructed the workers to unload trucks when they arrived, which the workers did because Mr Xu was their boss.[55]
• At the time at which he attended the site, Mr Su: [53] T 237
[54] T 94
[55] T 277
(i) was unaware of the meaning of the term “contract price”.[56]
[56] T 248
(ii) did not have a cheque book.
(iii) did not know how to quote on the job.
(iv) had never employed anyone whilst he had been in Australia or whilst in China.
(v) had never paid anyone’s wages and described himself as not having “the right to employ them. I was just a worker”.[57]
[57] T 252
(vi) did not understand the difference between a head contractor and a sub-contractor. He had never been the director of a company in Australia; he had not registered a business name in Australia; he had never run his own business in Australia; he had never operated in partnership in Australia.[58]
[58] T 263
•
Mr Su had previously worked for Mr Xu. On those occasions he would be paid for the job and not on an hourly rate.[59]
•
When it came to deciding how he should be paid, it was Mr Xu who made that decision for Mr Su.[60]
•
Following the incident when Mr Xu attended Mr Su’s house with a cheque for $4,022.00 and it was suggested that Mr Xu should pay the plaintiff and Mr Liang from that sum, Mr Su declined to accept the cheque in the following circumstances:
[59] T 254
[60] T 257
“He said ‘I pay to the other workers,’ I said ‘no, why should I pay
them’.”[61]
[61] T 257
The Evidence of Yesheng Liang
•
Mr Liang gave evidence that at the time he was contacted by Mr Su as to the work which was available at the site, he was at the plaintiff’s house. At that time his evidence was that Mr Su said:
“Charlie got a job out at St Kilda. You guys want to do that or not?”[62]
[62] T 282
•
In the course of his evidence, Mr Liang was asked whether, whilst on site, he would obey directions given to him by Mr Xu. His evidence on this issue was as follows:
“Q: Why did you do what Charlie [Mr Xu] was telling you?---
A: I listen to him, yes.[63] Q: Why would you listen to him?--- A: He should then charge because that is his job. Q: Who did you think was going to pay you for the work you were
doing there?---A: I think it should be Charlie. Q: Why should it be Charlie?--- A: Because that is he got the contract on that job, yes.” [63] T 282
• Mr Liang described Mr Campbell as being the foreman of the whole job.[64] The Evidence of Michael Zinski
[64] T 291
64 Mr Zinski, a director of Intercon, described the project at 7 Marine Avenue as being a costs plus contract. He said that the sub-contract awarded to Golden Tape required it to supply all materials and labour necessary to undertake the plastering work at the site.[65] He described Mr Xu’s responsibility as involving liaising with his staff and ensuring the quality of the work.[66] He said that, in the course of negotiating the sub-contract, the issue of insurance was discussed with Mr Xu and it was his recollection that Mr Xu undertook to provide the appropriate documentation.[67]
[65] T 685
[66] T 686
[67] T 686
65 At no time did Mr Xu make Mr Zinski aware that he was sub-contracting the plastering work to anyone else. When asked whether it would have made a difference to him in the tendering process had it been made known to him that Mr Xu was going to sub-contract the plastering work, Mr Zinski gave evidence:
“It’s a question I’ve never thought of, looking back in hindsight I still don’t
– I still don’t know the answer.”
Findings as to the Employment Relationship between Golden Tape and the
Plaintiff66 The determination of whether an employment relationship existed between Golden Tape and the plaintiff involves a consideration of competing indicia. Whilst the authorities contain differing statements as to what might be regarded as constituting the essence of such a relationship, there is general agreement that concepts such as the supply of work and skill in service of another, which is to be contrasted with a person who carries on a trade or business of his own, lie at the heart of the analysis.[68] In the reasons which I have delivered in support of my ruling that I should discharge the jury in this proceeding, I set out the factors which should be considered in determining whether an employment relationship exists. It was not suggested by any of the parties that my approach to the analysis of this issue as set out there was inappropriate. Adopting that approach I will now deal the facts which are relevant to this issue as I find them to have been established.
[68] see Hollis v Vabu Pty Ltd (2007) CLR 21; Victorian WorkCover Authority & Anor. v Game [2007] VSCA 86 (11 May 2007)
67 The plaintiff was clearly regarded by Golden Tape as a skilled tradesman. Whilst he was working on site, Mr Xu was not required to issue the plaintiff with any instructions as to the way in which he should perform his work and there was no evidence that Mr Xu made any complaint about, or was unhappy with, the work performed by the plaintiff whilst on site.
68 The plaintiff brought to the worksite his skills, together with his basic tools. The fact that the plaintiff was not working under specific direction or that he supplied his own tools is of little moment in determining whether the plaintiff was an employee or a sub-contractor having regard to the plaintiff’s occupation as a skilled tradesman.
69 Although the hours of the plaintiff’s work appear to have been fixed by Mr Campbell, I do not consider this fact as bearing any significance, one way or another, upon the question of the plaintiff’s employment by Golden Tape. Having regard to the fact that the second defendant regarded the plaintiff as an employee of Golden Tape it follows that these directions, which were given by Mr Campbell to the plaintiff, arose by reason of the second defendant’s control of the site and were of the type issued to everyone working at the site in the course of the second defendant’s induction process.
70 The plaintiff considered himself to be an employee whilst on the site.[69] It is clear however that the plaintiff did not consider himself to be an employee of Mr Su. The evidence of the plaintiff, Mr Su and Mr Liang leads me to the conclusion that each of the three plasterers considered themselves as equals on the site and took the view that they were working as employees whilst on the site. There was no suggestion that Mr Su issued directions to the plaintiff as to the work that was to be undertaken in Unit 4, or that the plaintiff considered the relationship between himself and Mr Su to be one in which he would be required to follow directions given to him by Mr Su if such directions had been given to him.
[69] It was the plaintiff’s evidence that he considered himself to be an employee of the company who was
71 The fact that the plaintiff did not supply the materials which were needed to perform his work on site, namely the plasterboard and fixing agents, supports the proposition that the plaintiff was working as an employee and not as a sub-contractor.
72 There was no issue that Mr Xu, on behalf of Golden Tape, represented to Intercon that he would provide the labour which was required to undertake the work and that Intercon was not aware at any time that Golden Tape intended to sub-contract out the labour required in the plastering work which was to be undertaken.70 I consider this representation made by Mr Xu to Mr Zemski, and the fact that Mr Xu provided the plasterboard and other materials without which the work undertaken by the plaintiff could not proceed, to be matters of considerable weight when considering the issue as to whether or not an employer-employee relationship existed between the plaintiff and Mr Xu.
73 Whilst the evidence suggests that the plaintiff considered Intercon to be his employer, he was not aware of the contractual obligations assumed by Golden Tape pursuant to its agreement with Intercon. Had he been so aware, I consider it likely that the plaintiff would have regarded, not Intercon, but
performing the work on the site, and I interpret this to be a reference to Intercon.
In this regard, I accept the evidence of Mr Zemski that Mr Xu represented to him that Golden Tape had arranged appropriate WorkCover insurance to protect the workers who were to be brought onto the site.
Golden Tape as his employer.
74 Mr Xu gave evidence that he told Mr Campbell to arrange appropriate scaffolding within the void when Mr Xu became aware that the plasterers were to commence working above the void. The action of Mr Xu in this regard, involving as it did the taking of steps to arrange appropriate scaffolding to be provided for the three plasterers, is consistent with the action which would be expected of an employer and suggests the existence of an employment relationship between the three plasterers and Mr Xu.
75 Although Mr Xu denied the fact that he had the right to dismiss the plaintiff if he was unhappy with his work on site, I do not accept his evidence on this issue. Clearly Mr Campbell regarded the plaintiff as an employee of Golden Tape. Although there is no evidence on this issue, I am satisfied that Intercon would not have regarded itself as being in a position to dismiss the plaintiff if it was unhappy with the work he was performing. Mr Su was clearly of the view that he was a worker on site. Although there is no evidence directly on point, I am satisfied that Mr Su did not consider that he had the ability to dismiss the plaintiff if that issue arose. I am satisfied, in the circumstances, that it was Mr Xu who had the right to dismiss the plaintiff if he was unhappy with his work.
76 It is asserted by Mr Xu that Mr Su employed the plaintiff. I reject that assertion. I have previously expressed my views as to the reliability of Mr Xu as a witness. Whilst, as I have remarked earlier, Mr Su was clearly uncomfortable in the witness box, there was a consistency in his evidence which moves me to form the opinion that he was a reliable witness whose evidence should be accepted. In particular, I accept his evidence that at all relevant times:
• He did not possess a cheque book; •
He did not possess the skills to provide a fixed price quote on a plastering job;
•
He had never employed anyone whilst working as a plasterer, both in Australia or whilst working in China;
•
He considered himself as a worker not an employer[71] and he considered Mr Xu to be his boss;[72]
•
He did not, in 2002, understand the difference between a head contractor and a sub-contractor.
[71] T 252
[72] T 96
77 When this evidence is considered in the context of the evidence given by Mr Su, which I accept that:
(i) When he had previously worked for Mr Xu it was Mr Xu who made the decision as to what Mr Su should be paid[73] for the work which he undertook within Unit 4;
(ii) He refused to accept the cheque tendered to him, both by Mr Xu and Mr Zang in respect of the plastering work undertaken in Unit 4,[74]
[73] T 257
[74] In this regard, I accept that the reason for the refusal by Mr Su to accept the cheque was that he did not consider himself to be the employer of the plaintiff or Mr Liang.
at every level of the analysis of the evidence of Mr Su, the evidence suggests that Mr Xu was the employer of Mr Su and that Mr Su did not enter a sub- contract or an employment agreement with the plaintiff and Mr Liang in respect of the work which they undertook at the site.
78 I was particularly impressed with Mr Liang as a witness. He carefully considered his answers and made concessions where appropriate. The two passages of evidence which I have quoted when referring to the evidence of Mr Liang were not challenged and I accept that evidence. It follows that in making the arrangement for the plaintiff and Mr Liang to attend the site, Mr Su was indicating that the three plasterers were to work on a job arranged by Golden Tape, and that whilst they were on site, Mr Liang followed the directions of Mr Xu because he considered himself to be working for him. These findings again are inconsistent with the allegation made by Mr Xu that Mr Su entered into a sub-contract relationship with him pursuant to which Mr Su engaged the services of the plaintiff.
79 The fact that the plaintiff had not entered into an employment or sub-contract agreement with Mr Su does not necessarily lead to a finding that an employment agreement existed between the plaintiff and Golden Tape.
80 Having regard to the relatively unsophisticated relationship which the plaintiff and his fellow workers were prepared to accept which involved them committing to performing plastering work at the site without making any arrangement as to their rate of pay or mode of remuneration,[75] many of the factors which require consideration are of little moment in determining whether an employer-employee relationship existed between Golden Tape and the plaintiff.
[75] I am satisfied that the plaintiff’s preparedness to commence work on the site without determining these issues arose by reason of the fact that the plaintiff considered himself an employee and that the plastering work was largely being undertaken by members of the Chinese Immigrant Community. The evidence as to the proposed method by which the plaintiff would be paid is unclear but I consider it to be of little relevance to the determination of this issue.
81 I am satisfied, however, that Golden Tape undertook:
(i) to provide the plaintiff’s services to the Intercon Group; (ii)
to provide all the materials required by the plaintiff in the performance of his work on site; and
(iii) that the plaintiff brought to the site only his skill as a tradesman. 82 I have previously expressed strong criticism of the evidence given by Mr Xu. Finding as I have that he falsely created the Su Contract for the purpose of misrepresenting the relationship which existed between Golden Tape and Mr Su, I find that it is likely that he sought to misrepresent the relationship which existed between Golden Tape and the plaintiff, namely one of employer- employee. Whilst independently of any further analysis this finding would be sufficient to deal with the question as to whether the plaintiff was an employee of Golden Tape, the fact that:
(i)
Golden Tape represented to the second defendant that the plaintiff was its employee;
(ii)
Golden Tape supplied the materials required by the plasterers to perform their work;
(iii) Golden Tape had the right to dismiss the plaintiff; (iv)
the plaintiff and his fellow workers, by reason of their poor command of English, were dependent upon Mr Xu to act as their intermediary with Mr Campbell, and he undertook that function;
(v)
Mr Xu took it upon himself to report the need for appropriate scaffolding to be erected within the void for the use of the plaintiff;
(vi)
generally the three plasterers saw themselves as being required to obey instructions given to them by Mr Xu on behalf of Golden Tape and regarded Mr Xu as their boss;
(vii)
the work performed by the plaintiff was an integral part of Golden Tape’s business and the plaintiff brought only his skill to the work site in furtherance of that business
leads me to the conclusion that it is appropriate to describe the relationship
between the plaintiff and Golden Tape as one of employer and employee.
The Liability of Golden Tape with respect to the Incident
83 It was submitted on behalf of Golden Tape that the duty imposed by Regulation 715 of the Occupational Health and Safety (Plant) Regulations 1995 (“the Regulations”) could not be invoked against it by reason of the fact that all scaffolding which was being used on the work site was under the management and control of Intercon. I accept this submission. In these circumstances, I find that the plaintiff has not established that the incident occurred by reason of the breach by Golden Tape of any duty imposed upon it by reason of s.715 of the Regulations.
84 It was the obligation of Golden Tape as the plaintiff’s employer to take reasonable care to provide the plaintiff with a safe system of work and with safe plant and equipment. This duty was non delegable. In the circumstances, the findings which I have made as to the failure of Intercon to provide safe scaffolding for the use of the plaintiff apply equally to Golden Tape.
85 Independently of the liability which attaches to Golden Tape by reason of the breach of the non delegable duty which it owed to the plaintiff as his employer, the evidence establishes another ground upon which Golden Tape breached the duty of care which it owed to the plaintiff.
86 It was Mr Xu’s evidence that, when he became aware that work was to be undertaken over the void, he contacted Mr Campbell for the purpose of arranging the erection of appropriate scaffolding.[76] There is no corroboration of the fact of this conversation and I am not satisfied that it occurred. Mr Xu conceded that he did not tell the workers that they should await the erection of appropriate scaffolding by Mr Campbell before they commenced working above the void.[77] Having regard to my finding that both Mr Xu and Mr Campbell took part in the use of the work platform to support the mobile scaffold whilst the plaster was fixed to the stairway above the void, I do not accept Mr Xu’s evidence that he would have been moved to request Mr Campbell to erect a different structure to facilitate the work which the plaintiff was performing at the time of the incident. It is clear having regard to Mr Xu’s evidence, that he requested Mr Campbell to erect such a structure, that Mr Xu accepted that it was his responsibility to make such a request. His failure to do so provides another ground upon which to fix Golden Tape with liability for the happening of the incident.
[76] T 617
[77] Had Mr Xu intended to speak to Mr Campbell about erecting scaffolding in the void, it seems likely that he would have told the three plasterers either of this fact or that they should not commence work until safe scaffolding had been erected.
Contributory Negligence
87 The work platform was comprised of large hardwood planks which were 290 millimetres wide and 45 millimetres thick[78] and of varying lengths between 2.5 metres and 4.5 metres.[79] Given the description of the planks employed to form the platform, it is likely that the platform gave the appearance of being a purpose-erected substantial structure.
[78] T 742
[79] T 758
88 The plaintiff accepted that before the incident he at no time checked the work platform to ensure that it was appropriately secured. His explanation for not checking the security of the platform was:
“You know, working platform or scaffold has national standard so when
there’s – it’s not my job and so I didn’t check.”[80]
[80] T 87
89 The plaintiff accepted that before the incident as he was working on the plank it was bouncing, however he described the movement as not being vigorous.[81] He said that whilst working on the platform he did not feel unsafe as the platform was a facility provided by the company for the purpose of work.[82]
[81] T 88
[82] T 116
90 Mr Liang agreed that it was commonsense to make sure that work platforms were secure.[83] When asked whether the work platform was checked before the plaintiff’s fall, he responded:
“What I mean, because we did hang with scaffold on the plank, we did
hang, we didn’t fall down, you know we trust on there, you know.”[84]
[83] T 249
[84] T 295. I take this evidence to be a reference by Mr Liang to the work which had been previously undertaken on the platform when one end of the mobile scaffolding was supported by the platform for the purpose of fixing the plasterboard to the ceiling.
91 Having regard to my findings that:
• the work platform had been erected for the plaintiff’s use by Intercon; •
the work platform gave the appearance of being a purpose-built substantial structure;
•
the system at the worksite was that no alterations or modifications to the scaffolding were to be undertaken by anyone other than Mr Campbell. This system no doubt reinforced the plaintiff’s view that the work platform had been constructed according to appropriate standards;[85]
•
prior to the incident the work platform had been employed by the plaintiff, together with Mr Campbell and Mr Xu to support the mobile scaffold at the time at which the plaster to the ceiling in Unit 4 was erected and that in so using the work platform, Mr Campbell (who erected it) and Mr Xu (the plaintiff’s employer), by their actions represented the working platform as being appropriate for use.
[85] see the plaintiff’s evidence at T 87
I am not satisfied that the defendants have established on the balance of probabilities that the plaintiff was guilty of contributory negligence.[86]
[86] Whilst the particulars of contributory negligence relied upon by the defendants make a number of allegations against the plaintiff, there is no suggestion that the plaintiff was aware that the platform was not appropriately secured, and the allegations with respect to contributory negligence seem to be confined to the fact that the plaintiff did not check whether the platform was secured and that he was aware, whilst working on the platform, that there was some movement in the platform.
Apportionment of Liability between the Defendants
92 In assessing the respective liability of the defendants, I am required to undertake a comparison both of the culpability of each defendant, that is, the degree of departure from the standard of care of the reasonable person, together with an evaluation of the relative importance of the acts of each of the defendants in causing the damage.[87]
[87] Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492
93 As the plaintiff’s employer, Golden Tape owed to the plaintiff a duty to take reasonable care not to expose him to an unnecessary risk of injury. The duty which was non-delegable required Golden Tape to take reasonable care to provide the plaintiff with a reasonably safe place of work and reasonably safe plant and equipment. Having regard to my finding that Mr Xu was present when the platform was used to support one end of the mobile scaffolding when the plasterwork to the ceiling above the void was undertaken, it follows that Golden Tape was aware that the platform would be used to perform work over the void, and that it acquiesced in, and by its actions endorsed, the use of the platform for that purpose. As the plaintiff’s employer, Mr Xu had the ability to instruct the plaintiff that no work was to be done over the void until a safe work platform was erected.
94 Further I find that in the circumstances in which:
• Mr Xu was aware that an inappropriate platform had been installed by Golden Tape over the void; • Mr Xu was aware that it was the exclusive obligation of the second defendant to supply, erect and alter scaffolding; Mr Xu had an obligation to ensure that the inappropriate scaffolding which had been erected by Mr Campbell was replaced with appropriate scaffolding.[88]
[88] It was submitted that I should apply the approach taken by the New South Wales Court of Appeal in TNT Australia Pty Ltd v Christie & Ors [2003] NSWCA 47, and find that Golden Tape was entitled to a
95 As the head contractor with respect to work being undertaken at the site, the second defendant undertook the exclusive responsibility for the provision of safe scaffolding. Having regard to the importance of safe scaffolding in circumstances in which the three plasterers were required to work above the void at a height in excess of 3 metres, I am of the opinion that the content of the duty of care owed by the second defendant to the plaintiff was similar in scope to that owed by Golden Tape.
96 Having assumed the obligation to provide appropriate scaffolding, the defendant erected a work platform which was patently unsafe, and acted similarly to Golden Tape in acquiescing in and effectively endorsing the use of the work platform by reason of the activities of Mr Campbell in helping to stabilise the end of the mobile scaffold which was positioned on the work platform at the time at which the plaster was fixed to the ceiling above the void.
97 The dangerous situation which arose by reason of the presence of the unsafe work platform was a situation created by Mr Campbell in erecting a platform which he knew was perilously insecure, having regard to the minute overhang between the primary supporting plank for the platform and the top plate.
98 Whilst Mr Xu should have regarded the use of the platform as being inappropriate, having regard to its obvious deficiencies, there was no suggestion that Mr Xu had actual knowledge of the method which had been employed by Mr Campbell to install the supporting plank.
99 The presence of this knowledge in Mr Campbell and its absence in Mr Xu results in a finding of greater culpability on the part of the second defendant. I
contractual indemnity from Intercon by reason of the failure by Intercon to provide safe scaffolding for the work which was being undertaken by the plaintiff. Having regard to the factual findings I have made against Mr Xu with respect to his knowledge of the presence of an inappropriate working platform, his acquiescence and or encouragement in its use, his failure to direct the plaintiff not to work on the platform and, finally, his failure to require Mr Campbell to erect appropriate scaffolding, I do not consider the analysis of the contribution issue which was undertaken by the Court of Appeal in that case to have any application in the present circumstances.
regard both the first and second defendants as being broadly equal however in their responsibility for the cause of the incident. In the circumstances, I make the following finding of apportionment between the defendants in respect of the plaintiff’s injury, loss and damage:
Golden Tape - 40 per cent Intercon - 60 per cent.
Quantification of Damages
The Plaintiff’s Evidence as to Disability
100 Falling, as he did, over 3 metres and landing on his feet, the plaintiff suffered severe injuries to both of his lower limbs. The injury occasioned to his right leg involved a comminuted fracture of the lateral tibial condyle of the right knee with extensive involvement of the articular surfaces. The injury occasioned to his left leg involved a comminuted fracture of the left os calcis.
101 The plaintiff’s injuries were managed at the Alfred Hospital by an initial procedure which involved an open reduction and internal fixation of the comminuted fractures of the upper tibia and the lateral tibial condyle. This involved the reconstruction of the right patella and the placement of a large buttress plate and multiple screws to support the reconstructed patella. In addition, surgery was undertaken upon the plaintiff’s left foot in the form of an open reduction and internal fixation of the comminuted fragments of the left os calcis.
102 After ten days the plaintiff was transferred to the Caulfield Convalescence Hospital and thereafter was transferred to the Dandenong Rehabilitation Centre where he remained an inpatient until late September 2002. At the time of his discharge from the Dandenong Rehabilitation Centre, the plaintiff was walking with the use of two crutches. This continued for approximately four months, and thereafter the plaintiff slowly mobilised to his present state in which he walks with the use of a single walking cane. The plaintiff’s recovery from his injuries is described as having made slow progress for approximately twelve months, at which time his recovery plateaued.
103 In January 2006, the plaintiff underwent surgery to remove the upper tibial plate which had been positioned in his right leg. An MRI scan taken in mid 2006 confirmed the presence of widespread damage to the articular surfaces of the knee and the possibility of a complete rupture of the anterior cruciate ligament, as well as damage to the lateral capsular ligament.
104 The effect of his injuries upon him were described by the plaintiff in the following terms:
•
During his convalescence the plaintiff’s temper changed, his mood became worse and worse and he commenced taking anti-depressants.
•
During 2003, the plaintiff’s wife left him. He gave the reason for his marriage break-up as being associated with his loss of income and his wife becoming irritable. He said that when his wife left him his:
“Hope becomes very dim.”
• His knee was unstable and he was in constant pain. •
As time passed, he described the pain in his right knee and left ankle as becoming aggravated. He said that the surgery performed in January 2006[89] had made very little difference to the level of his pain.
•
As at the time of the trial, the plaintiff described using medication in the form of painkillers and anti-depressants. He described his level of happiness as:
[89] This being an arthroscopy of the knee and the removal of the plate undertaken by Mr Doig.
“It’s the lowest level, worst period.”
and his quality of life as being:
“At the bottom, you know, of the Australian life.”[90]
[90] T 76
105 The plaintiff gave evidence that his daily routine involved:
“Read some newspaper, watch some TV, sometimes my head like is
going to explode. Feel hot and fever, just keep smoking that’s all.”[91]
(sic)
[91] T 74
106 As to his attitude to employment, the plaintiff said:
•
Before the incident he enjoyed his work, that he was very hardworking and that he worked every day except for Sundays or public holidays.[92]
•
Following his injury he thought that he would be able to continue to work but now his hope in this regard was completely lost.[93]
•
It was his intention, but for the incident, to work at least until he was seventy.[94]
[92] T 74
[93] T 75
[94] T 75
The Medical Evidence
107 A considerable body of medical evidence was adduced during the course of the trial. Essentially no challenge was made to the extent or severity of the plaintiff’s present symptoms or that his prognosis, particularly with respect to the injury to his knee, was one of continuing decline. Essentially the only issue which arose between the parties as to the plaintiff’s injuries involved:
(i) the prospect of the plaintiff undergoing surgery in the form of a knee replacement or arthrodesis, and the likely outcome of such surgery; (ii) the extent of the plaintiff’s capacity for work. 108 The evidence given by Mr Kevin King, an orthopaedic surgeon, was representative of the evidence called on behalf of the plaintiff with respect to the injuries to his knees. Mr King described the nature of the comminuted fracture to the plaintiff’s right condyle as being always regarded in orthopaedic circles as having a bad prognosis, in that the reconstructed joint will thereafter wear rapidly. Whilst he described the fractures of the condyle as being matters of degree, he expressed the opinion that the plaintiff’s fracture represented a severe injury.[95] He said that the usual prognosis of an os calcis fracture as severe as the one suffered by the plaintiff is a bad one, but that the plaintiff had done much better than most people would have with such an injury which is normally very disabling.[96] It was his opinion that the plaintiff’s condition in his ankle would probably slowly deteriorate.[97]
[95] T 132-T 133
[96] Mr King opined that the plaintiff had not reached this stage but he may well reach it within time.
[97] T 185; T 211
109 As to the plaintiff’s right knee, Mr King described that injury as doing even worse than he might have expected.[98] It was his opinion that the osteoarthritis present in that joint was such as to warrant, at the present time, surgical intervention either to replace the knee with an artificial joint or to arthrodese the joint.
[98] T 189
110 Mr King expressed the opinion that knee replacement surgery was unlikely to be successful because the plaintiff had suffered an injury to his quadricep which had so compromised the strength of that muscle that the inevitable insult to the quadricep which would be occasioned by knee replacement surgery would result in the knee joint becoming grossly unstable. For this reason, Mr King said that he would not recommend treatment by way of knee replacement surgery but would recommend treatment in the form of arthrodesis[99] which, even if successful, would involve a severe disability.[100] As to the plaintiff’s employability, Mr King expressed the opinion that overall he considered the plaintiff’s prospect of employment as involving an unrealistic expectation.[101]
[99] T 202-T 204
[100] T 205
[101] T 212
111 The plaintiff’s general practitioner, Dr Thomas Ngai, described the plaintiff as having suffered a fractured left wrist in February 2001, in respect of which he provided the plaintiff with certificates for modified work duties for approximately seven months.[102]
[102] T 375
112 Following the happening of the incident, Dr Ngai described the plaintiff as making very slow progress and presenting with continuing symptoms of pain in his right knee and left heel. He described the plaintiff as having great difficulty with walking and standing by reason of his injuries. He said that, notwithstanding his prescription of Panadol Osteo at its maximum dosage level to attempt to control the plaintiff’s pain, the plaintiff did not get significant relief from his pain.[103]
[103] T 364-T 365
113 Given the severity of the plaintiff’s symptoms, Dr Ngai regarded the plaintiff as being totally incapacitated for work and that this incapacity was permanent.[104]
[104] T 353
114 Whilst Dr Ngai agreed that the plaintiff could undertake sedentary work if it was available to him, he said that one of the factors which might limit the plaintiff’s ability to find suitable employment was his lack of English. He gave evidence that he had discussed this with the plaintiff, who had expressed the opinion that he was too old to learn a new language. It was Dr Ngai’s assessment of his patient that he thought this was reasonable.[105]
[105] T 368
115 An issue was raised with Dr Ngai as to the plaintiff complaining of dizziness in December 1999, January 2001 and August 2003. Dr Ngai said that he was unable to find the cause of this dizziness, commenting that there were many different causes of this condition.[106]
[106] T 370; Dr Ngai said that he had seen the plaintiff on approximately seventeen occasions between January 2001 and the happening of the incident, however during which time there were only two presentations with dizziness – T 386.
116 As to the plaintiff’s general health, Dr Ngai gave evidence:
[107] T 379
[108] Dr Ngai gave evidence that the plaintiff’s back pain resolved without further problems.
• That the plaintiff had levels of cholesterol which were higher than normal. • That in July 2005, the plaintiff presented to him with abdominal tenderness which was thought by Dr Ngai to be associated with right renal colic.[107] • That in December 2001, the plaintiff presented with a history of back pain for two weeks which was associated with the fall in which he had fractured his wrist, and that x-rays taken at that time led Dr Ngai to diagnose the presence of early osteoarthritis in the lumbosacral spine.[108] 117 Mr Russell Miller, an orthopaedic surgeon, in a report dated 24th February 2007, opined that the plaintiff’s injuries had essentially stabilised but that deterioration was likely both from the point of view of the right knee and the left hindfoot. He opined that the plaintiff was not fit for pre-injury work and that return to the workforce was not envisaged in this case. He further commented:
“He has a marked disability in relation to the right knee and left hindfoot. Each of these injuries will have a marked impact upon his capacity for employment. Neither of these injuries alone would render him incapable of significant physical work and certainly the combination of these injuries renders him unsuitable for significant physical work. Again, neither of these injuries would impact upon social, domestic and recreational activities.”[109]
[109] T 463
118 In his report dated the 18th March 2007, Mr Miller commented:
“I remain of the view that this man is not fit for significant physical work and he is unlikely to return to the workforce. He is at high risk of developing arthritic disease and on the balance of probabilities I believe he will do that to the point where he would require a major intervention such as further arthroscopy and/or knee replacement surgery. The injury will have a significant impact on his leisure and recreational activities.”[110]
[110] T 464
119 The plaintiff’s treating orthopaedic surgeon, Mr Stephen Doig, expressed the opinion that he was in essential agreement with the views expressed by Mr Kevin King. He opined that the plaintiff was unfit for heavy manual work, that he would have difficulty performing any activity involving carrying, lifting, pushing, pulling or extensive stair climbing, and that he was precluded from vigorous social activities.
120 Dr Helen Sutcliffe, an occupational physician, expressed the opinion that the plaintiff had suffered a severe injury to his right knee, left heel and ankle as the result of the incident, and opined:
“I believe that Mr Zhang will not work again taking into account the serious nature of the injury he sustained to his right knee, persisting limitation of function, his age, background, education and past work experience. There is an inability to undertake any occupation as a result of the right knee injury currently and into the foreseeable future. He has no current or future working capacity for pre-injury manual handling employment either full or part-time and no capacity for regular employment either full or part-time as a result of the serious injury to the right knee taking into account his age, background, education and past work experience.”[111]
[111] T 398
121 With respect to the plaintiff’s history of dizziness, Dr Sutcliffe expressed the opinion that unless dizziness was a frequent occurrence, she did not regard it as influencing the plaintiff’s capacity to work as a plasterer, as the most common cause of dizziness was a viral labyrinthitis which passed and settled with time.[112]
[112] T 405
122 Dr Sutcliffe was asked to comment as to whether anything would prevent the plaintiff doing semi-sedentary or sedentary work after the performance of an arthrodesis or a total knee replacement. She commented:
“If Mr Zhang had a total knee replacement and if as a result of that he then had no pain and if as a result of that he could be re-trained into a non-manual handling occupation and if as a result he was able to perhaps expand his English then perhaps he might be able to work but all of these things are for the future and I have no idea whether or not that would occur because I cannot look at the result of a total knee replacement, it varies in result and so I can’t propose what would happen.”[113]
[113] T 416
123 Mr Peter Blombery, a physician, opined that the plaintiff would be left with a very significant disability affecting both his legs for the foreseeable future and that:
(i) The plaintiff had no capacity, either now or in the future, to perform his previous job as a plasterer; (ii) Given the severity of his injury, he had no capacity to perform any form of employment either now or in the future. 124 Whilst it was put to Mr Blombery that the plaintiff, with successful surgery, may be fit to perform sedentary work, he expressed the opinion that the combination of the medication which the plaintiff may be required to take, together with his poor English and lack of experience in any work other than plastering, practically speaking, rendered the plaintiff unemployable.[114]
[114] T 447
125 Mr Kenneth Myers, a surgeon, essentially agreed with the opinions expressed by Mr King, Mr Miller and Dr Sutcliffe. He endorsed Dr Sutcliffe’s view that the plaintiff had no current or future capacity for work.[115] He expressed the opinion that the barrier to the plaintiff’s employment in a sedentary capacity arose by reason of his pain, together with his requirement to make use of Panadeine Forte on a regular basis. He accepted that if the plaintiff underwent successful surgery in the form of an arthrodesis, this would have a positive influence on his ability to undertake sedentary employment.
[115] T 480
126 Dr Albert Kaplan, a psychiatrist, expressed the opinion that the plaintiff had become demoralised as the result of his injuries, his chronic pain and the impact which those injuries have had upon his life. He said that the plaintiff had developed an Adjustment Disorder with Mixed Anxiety and a Depressed Mood and that he perceived his life as having been destroyed by the consequence of what he described as his employer’s negligence and that he experienced feelings of rage towards his employer. He opined that the plaintiff was likely to remain depressed and anxious for as long as his pain persisted and for as long as he was unable to rehabilitate himself back into the workforce and that if he became increasingly disabled, his depression was likely to intensify.
Findings as to Capacity for Employment
127 I am satisfied that the plaintiff’s prior injury to his wrist, his incidents of back pain and his symptoms of dizziness were transitory problems which would not have adversely impacted upon his capacity for continued employment as a plasterer.
128 It was the opinion of each medical witness to give evidence in the case that the nature of the plaintiff’s injuries were such that he was permanently unfit to perform any work which required him to stand, walk or engage in strenuous physical activity. Whilst a number of doctors gave evidence that the plaintiff retained a capacity to perform sedentary work, generally that evidence was given:
•
In the context that the plaintiff would undergo knee replacement surgery which was successful in reducing the plaintiff’s symptoms of pain in his knee;
•
Without taking into account the effects of the emotional injuries suffered by the plaintiff as described by Dr Kaplan;
•
Without specific reference to the fact that the plaintiff was not a good candidate for surgery in the form of a total knee replacement having regard to the diminished strength of his quadricep, and that if the plaintiff underwent surgery in the form of an arthrodesis, the plaintiff would present to an employer with a stiffened knee joint which may well impact upon his ability to sit at a workbench or production line.
129 Having regard to the fact the plaintiff is fifty-one years of age, is illiterate in English and is likely to remain so, suffers from chronic symptoms of pain, which may or may not be improved by surgery depending on the type of surgery which is undertaken, and that he suffers from anxiety and depression, I am of the opinion that the plaintiff has been rendered effectively unemployable by the injuries suffered as the result of this incident.[116]
[116] In this regard, I accept the evidence of Dr Sutcliffe (see in particular her evidence at T 398).
Findings as to Extent of Disability
130 The plaintiff is 51 years of age. It is now almost seven years since he was injured and throughout this period he has suffered constant pain and considerable incapacity. I am satisfied on the basis of the evidence that:
•
It is extremely unlikely that the plaintiff will achieve a successful result if he chooses to undergo knee replacement surgery, having regard to the dysfunction of his quadricep.[117]
•
Not only are the plaintiff’s symptoms in his right knee likely to increase with the passage of time, with the resultant increase in disability, but also that the condition in the plaintiff’s left heel is likely to deteriorate with a resultant increase in disability.[118]
•
The break-up of the plaintiff’s marriage was in a large part related to his inability to work by reason of the injuries he suffered.[119]
•
The loss of the plaintiff’s ability to work in his trade is a significant loss in that:
(i) he enjoyed his work; (ii)
his work no doubt provided him with a point of contact with other members of the Chinese community and the means of occupying his time in a productive way.
and that the plaintiff will have difficulty replacing these losses given his
limited education and minimal level of literacy.•
The plaintiff suffers from very considerable symptoms of pain and that his ability to walk is severely compromised and that even assuming successful surgery in the form of an arthrodesis, the plaintiff will be left with significant pain in his left heel and a significant disability arising by reason of the presence of a stiffened right knee joint.
•
By reason of his continuing symptoms, disability and restriction in employment, the plaintiff will suffer from ongoing symptoms of depression and anxiety.
[117] In this regard, I accept the evidence of Mr King that the dysfunction which is present in the plaintiff’s quadricep is likely to be secondary to an injury to that muscle, and in those circumstances, even if an aggressive regime of treatment is undertaken in an attempt to rebuild the muscle, it is unlikely that any significant gains will be made. No evidence was adduced from the plaintiff as to his attitude to an arthrodesis. Whilst it was the general consensus that an arthrodesis would be successful in reducing, if not obliterating, the pain which is present in the plaintiff’s right knee, the disability occasioned to a relatively young man by reason of the presence of a stiffened knee in undertaking the activities of daily life should not in my view be underestimated.
[118] Albeit that I find as a probability that the deterioration in the plaintiff’s left heel will proceed at a more modest rate than the deterioration in his right knee.
[119] Whilst there can never be any certainty as to whether the plaintiff’s marriage would have survived absent the happening of the incident, the fact that the plaintiff is firmly of the belief that it was the incident which caused the breakup of his marriage is in any event a factor which I consider to be of considerable relevance.
131 In the circumstances, I consider it appropriate to assess the plaintiff’s damages for pain and suffering and loss of enjoyment of life in the sum of Two Hundred and Seventy Five Thousand Dollars ($275,000.00).
Damages for Pecuniary Loss
132 In the three years prior to his incident, the plaintiff’s income was as follows:
Year Total Income Expenses Tax Payable Net Weekly Income 2000 $19,560 $6,261 $13,299 $245 2001 $42,411 $15,175 $27,236 $465 2002 $50,272 $7,907 $42,365 $678
133 I am of the opinion that it is appropriate to make use of the plaintiff’s net earnings during the financial year in which the incident occurred as being reflective of his earning capacity as a plasterer. It was submitted that the plaintiff faced a number of contingencies, over and above the ordinary, which were relevant both to his claim as to loss of earnings to date and in the future.
134 For the reasons earlier mentioned, I am satisfied that the plaintiff’s primary health was not such that it was likely to have affected in a negative way his capacity to earn income between the date of the incident and the present date.
135 It was submitted that:
• the plaintiff’s work carried with it peculiar risks of a physical injury;[120] •
the plaintiff was not in secure employment at the time of his incident, with the result that he was likely to face periods of unemployment when he was between jobs; and
•
that the plaintiff’s claim with respect to past loss of earnings should be discounted to reflect both those risks.
[120] An example being the incident in which the plaintiff was involved in February 2001 in which he fell from a ladder and fractured his wrist.
136 Table 4.1 in the report from Cumpston Sarjeant (“the actuarial report”) dated 31 March 2009[121] sets out the plaintiff’s projected after tax earnings using the plaintiff’s net income during the 2001-2002 financial year as the starting point and thereafter indexing that figure to take into account increases in line with average weekly earnings. That exercise generates a figure with respect to past loss of income in the sum of $244,840.00. This figure is conservative because it does not take into account Incolink benefits which the plaintiff would ordinarily be entitled to receive.[122]
[121] Exhibit R
[122] The value of Incolink benefits payable to the plaintiff between the date of the incident and the present date is set out in Table 5.1 of the actuarial report dated 31 March 2009 - Exhibit R.
137 Although I accept the submission made on behalf of the first defendant, that the plaintiff’s occupation carried with it a risk of injury, and that there was no guarantee that between the accident and the present date he would have been in continuous employment, the plaintiff had encountered both of these problems during the 2001-2002 financial year and had still earned $687.00 net per week during that year.[123] For this reason I do not consider that it is appropriate to discount the figure as calculated in the actuarial report to any significant degree. I do consider it appropriate however to apply a modest discount to the claim made with respect to the plaintiff’s loss of income to date to take into account the relative insecurity of his employment. I consider that the appropriate approach in this respect is to discount the value of the plaintiff’s loss of earnings to date by the full value of the Incolink benefits which he would have been entitled to.[124]
[123] I note during that financial year Dr Ngai was providing the plaintiff with certificates for light work until early September 2001 by reason of the continuing symptoms which the plaintiff was suffering in his right wrist and that immediately before the plaintiff commenced working at the site he was between jobs.
[124] In discounting the sum which I have allowed the plaintiff with respect to past loss of earnings by the full value of his Incolink payments, I have also taken into account the fact that I am not satisfied on the basis of the evidence adduced that the plaintiff would necessarily have received Incolink payments for all the work which would have been undertaken by him between the date of the incident and the present date as there is no certainty that the plaintiff would have been employed by employers who would have complied with their statutory obligations to make such payments. The plaintiff’s employment with the first defendant at the time of the happening of the incident, in which no Incolink payments were being made, is illustrative of the issue which arises.
138 In the circumstances, I fix the plaintiff’s past loss of income in the sum of $244,840.00.
139 For the reasons set out earlier, I am of the opinion that the plaintiff’s after tax earnings of $806 as at the present date, as calculated in 4.2 of the actuarial report, represents an appropriate basis upon which to calculate the plaintiff’s future loss of earnings.
140 The plaintiff gave evidence that it was his intention to work until the age of seventy. It was submitted on behalf of the defendants that the nature of the plaintiff’s work, involving as it did relatively strenuous physical activity, was such that it was unlikely that the plaintiff would have worked to age sixty-five. I am satisfied that the plaintiff was a hardworking tradesman who enjoyed his work and that as a new migrant who had recently purchased a house he would have continued to work in his trade for as long as he was capable of such work. I am satisfied that the plaintiff did not suffer from any medical condition or physical impediment which was likely to interfere with his ability to work to the normal retiring age. In the circumstances, I find on the balance of probabilities that the plaintiff’s retirement age would have been sixty-five.
141 The multiplier to age sixty-five, which takes into account the risk of statistical death, is 484.01.125 Applying that multiplier to a present net weekly wage of $806.00 produces a figure of $390,184.00 as representing the value of the plaintiff’s loss of earning capacity. For the reasons earlier mentioned I see no reason for discounting this figure by more than 15 per cent to take into account the vicissitudes which face the plaintiff. Adopting this approach, a figure of $331,665.00 is produced as representing the value of the plaintiff’s claim for future loss of earnings.
142 The plaintiff makes a claim in respect of the present value of his future
T 518
entitlement to Incolink benefits. The value of these benefits is $17,161.00.[126] I would allow the plaintiff this sum discounted by 25 per cent to take into account future vicissitudes, together with the specific risk that the plaintiff may not always have worked for employers who met their statutory obligation to make payments of Incolink to him, such as the first defendant. Adopting this approach, I would allow the plaintiff the sum of $12,870.00 with respect to future losses of Incolink benefits.
[126] Table 5.1 in the actuarial report.
143 On the basis of the wage rates which I have determined to be appropriate in calculating the plaintiff’s past and future economic loss, the sum claimed by the plaintiff with respect to the loss of past superannuation is $36,537 and the sum claimed with respect to future loss of superannuation is $48,390.[127]
[127] See Table 4.3 of the actuarial report.
144 I consider it appropriate to allow the plaintiff these sums;[128] however, I consider it appropriate to discount the figure generated in the actuarial report with respect to past superannuation by 10 per cent, and to discount the figure generated with respect to future superannuation by 25 per cent.[129]
[128] In using these figures, I accept that the evidence of Mr Sarjeant that, notwithstanding the present poor level of returns being generated by superannuation investments, the calculation made by him is one which is appropriate given that it was based upon a long term view of the past- T 514.
[129] In discounting the claim with respect to future superannuation by 25 per cent, I adopt the approach which I employed in assessing the plaintiff’s claim for future Incolink benefits as I consider that identical factors apply. I have discounted the plaintiff’s claim with respect to past superannuation by 10 per cent to take into account the fact that there was no certainty that the plaintiff would have been employed by employers who would have complied with their statutory obligation to make superannuation payments to him.
145 Accordingly, I assess the plaintiff’s claim with respect to loss of superannuation as follows:
Past superannuation - $32,883 Future loss of superannuation - $36,292
146 The parties agree that I should allow the sum of $43,742 in compensation to the plaintiff for the tax which has been deducted from WorkCover payments made to him to date.
147 In Summary:
I assess the damages to which the plaintiff is entitled as follows:
General damages - $275,000 Economic loss damages - $702,292
I apportion liability between the defendants:
Golden Tape - 40 percent Intercon - 60 percent
148 I will hear submissions from the parties as to the form of the judgment which is to be entered in the proceeding and as to costs.
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