New South Wales Supreme Court CITATION : Wilke v Astra Pharmaceuticals Pty Ltd & Anor [1999] NSWSC 1047 CURRENT JURISDICTION : Common Law FILE NUMBER(S) : 21377/95 HEARING DATE(S) : 27, 28 and 29 July 1999 JUDGMENT DATE : 25 October 1999 Peter Wilhelm Hans Wilke (Plaintiff) Astra Pharmaceutricals Pty Limited (First Defendant) Rondal Pty Ltd (Second Defendant) First Cross Claim Astra Pharmaceuticals Pty Ltd (Cross Claimant) PARTIES : Inco Electrical Pty Ltd (First Cross Defendant) Ronald Pty Ltd (Second Cross Defendant) Second Cross Claim Rondal Pty Ltd (Cross Claimant) Inco Electrical Pty Ltd (Cross Defendant) JUDGMENT OF : Master Harrison Mr A Lidden (Plaintiff) Mr T S Hale (First Defendant) COUNSEL : Mr M L Williams (Second Defendant/Second Cross Defendant) Mr R Seton (First Cross Defendant) Webb Thom & Associates (Plaintiff) Minter Ellison (First Defendant) SOLICITORS : Sparke Helmore (Second Defendant/Second Cross Defendant) Hunt & Hunt (First Cross Defendant ) CATCHWORDS : Personal injury - Liability; Cross Claims; Damages Jones v Dunkel (1959) 101 CLR 298 Fabre v Arenales (1992) 27 NSWLR 437 Papatonakis v Australian Telecommunications Commission (1985) 156 CLR 7 at pp 20-21 Christmas v General Cleaning Contractors Ltd [1952] 1 KB 141, 148 CASES CITED : Bates v Parker [1953] s QB 231 Pinborough v Minister for Argiculture (1974) 7 SASR 493 Husher v Husher & Anor [1999] HCA 47 Spargo v Haden Engineering (1993) 60 SASR 39 Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 DECISION : See para 80 18 THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION MASTER HARRISON MONDAY, 25 OCTOBER 1999 21377/95 - PETER WILHELM HANS WILKE v ASTRA PHARMACEUTICALS PTY LTD & ANOR (No 2) JUDGMENT (Personal injury - Liability, cross claims, damages) 1 MASTER: The plaintiff brings these proceedings for damages for personal injury sustained by him on 24 December 1992 when he fell through a ceiling. He alleges that his injuries were caused by the negligence of Astra Pharmaceuticals Pty Limited (Astra), the first defendant and Rondal Pty Limited (Rondal), the second defendant. It is alleged that the first defendant is the occupier of the premises located in 10 Khartoum Road North Ryde (the premises) where the accident occurred. The second defendant was a construction company carrying out building work at the said premises. 2 The plaintiff was born on 11 October 1955 and was 37 years of age at the time of the accident. In 1972 he left school after completing the school certificate and commenced as an apprentice electrician with DFG Electrical. The apprenticeship took four years and the plaintiff completed it in 1976. In 1977 the plaintiff commenced work with Works Ayr Electric as a tradesman electrician. Between 1978 and 1981 the plaintiff worked together with a partner in a business called Mains Electrical. In 1981 the plaintiff commenced business in his own right and subsequently the business was incorporated to Inco Electrical Pty Limited. The plaintiff was its only full time employee but at times up to 19 casual staff were employed. The plaintiff has been married twice and has three children. He is currently not married. 3 On the date of the accident, namely 24 December 1992, the plaintiff was employed by Inco Electrical Pty Limited (Inco) (the first cross defendant to the first cross claimant and the cross defendant to the second cross claimant). The plaintiff was performing electrical work at the premises pursuant to an agreement between the second defendant and the plaintiff's employer Inco. There was no written contract between those parties. The defendants deny liability and allege that if liability against them is established the damages to which the plaintiff would otherwise have been entitled ought to be reduced by reason of the plaintiff's own contributory negligence. 4 By amended cross claim filed 8 August 1996 Astra seeks contribution towards an indemnity against Inco (first cross defendant to first cross claim) and Rondal (second cross defendant to first cross claim). By second cross claim, Rondal seeks contribution and/or indemnity from Inco. By third cross claim Rondal seeks contribution and/or indemnity from Astra. 5 Astra is a pharmaceutical company which makes amongst other things sterilised plastic ampoules. Some areas of the premises have to be kept sterile and some of the rooms have to remain sealed. In some areas there was a series of air locks where air could only flow out of the sterilised area and not flow back in. For each of seven years prior to the accident Inco carried out work at the first defendant's premises during the three weeks when the premises were closed. This was known as the Christmas break shut down. During these periods of work up to 80 men would be employed to carry out the renovations - gyprockers, carpenters, electricians etc. The plaintiff had at times in the previous years worked up to 24 hours per day. 6 In 1992, 90 per cent of Inco's work was with Rondal. Rondal carried out the building work which usually consisted of moving walls and partitions, pulling down ceilings and replacing them at various locations within the premises. In previous years Inco also carried out regular maintenance work for Astra. Inco was paid directly by Astra for that work. On 25 November 1992 Rondal submitted a quotation to Astra in relation to the building alterations to their premises during the December 1992/January 1993 shut down. Paragraph (B) of the quotation referred to the location known as the new Rommelag corridor. The proposed work included air conditioning, new electric swing doors and a glass wall. The quote for this part of the work was $103,700 (Ex 1D/2). I infer that this quote is the basis upon which Rondal undertook the work for Astra. 7 Rondal instructed Inco to carry out the electrical work in the Rommelag Area which included the corridor. A Rommelag machine is a plastic injection machine. It is about half the size of a courtroom. It was not disputed that Inco was an independent contractor. Inco sent two invoices dated 26 December 1992 to Rondal in relation to the work carried out between 20-24 December 1992 in the sum of $990.11 and $318.88 (Ex 1D/2) respectively. 8 It is convenient at this stage that I make some comments concerning the plaintiff's demeanour. I carefully observed the plaintiff while he was giving evidence and being cross examined. He was articulate, confident and well presented. It is my view that his evidence was largely truthful. However, I formed the view that he presented his case at its highest. There were some inconsistencies between the evidence he gave and the statements he made to an investigator on 26 February 1993 (Ex B) which I will refer in more detail later in this judgment. The accident 9 During the 1992 Christmas shutdown the pace of work was more relaxed than in previous years. The plaintiff was required to work only 10 to 12 hours per day. Inco employed only five other casual employees to assist the plaintiff to carry out the electrical work at the premises during this period. 10 As at 24 December 1992 the plaintiff had already been working at the premises for about one week. During that time the Rommelag area had been altered. There were no formal plans detailing the proposed alterations. The walls had been removed and had been replaced in a different position. 11 The portion of ceiling that collapsed had already been altered during this shutdown because there was a higher ceiling level than in the rest of the factory and there was also a little dwarf wall in the vicinity (t 95). The air conditioning unit had been hoisted up into the ceiling cavity. The marine plywood sheets in the ceiling had been removed and had not been replaced. The original timber from the earlier ceiling had been reinstalled (t 74.35). The gyprock ceiling had been replaced. At the premises there were a number of fluorescent lights which were affixed to the ceiling by pieces of wood which were near the joists (t 21). A large timber joist had been installed. 12 The ceiling comprised of joists which ran from one supporting wall to another in a parallel fashion. The joists at their edge had dimensions of 100 millimetres (height) and 50 millimetres (width). There were smaller pieces of timber placed at right angles to the joists called trimmers or noggings (I shall refer to them as trimmers). They were 100 x 50 millimetres and usually smaller in length than joists. The trimmers were fixed by two or three 75 millimetre nails being hammered through the joists into the butt end of each trimmer at the side. Joists are considered structural members of the roof whereas trimmers are not considered as such. 13 In previous years marine plywood sheets were laid over the joists and framework of the ceiling to spread the load. The laying down of plywood sheets meant that the inside of the ceiling was like a floor where tradesmen could walk around and position themselves on these plywood sheets to carry out work in the ceiling. 14 Phillip Thomas Richard Baldwin, a carpenter employed with Rondal at the time of the plaintiff's accident, gave evidence. He had been employed as a carpenter for about 15 years. He had previously worked at the premises for two or three Christmas shutdowns and explained that if joists obstructed the position where the air conditioning and lighting were to be installed the ceiling joist would be cut (t 82). The trimmers would then go across at 90 degrees to the joist that was cut to the next parallel joist. The cut joist would not be as strong as it was originally when it was supported by the wall. Mr Baldwin also gave evidence that if the air conditioning ceiling duct was only 12 inches square and the joists were 600 millimetres apart at the centre it would probably not be necessary to make any cuts in the joist on the assumption that the air conditioning duct could be put through the centre of the joist. 15 The plaintiff was working in the ceiling space in the Rommelag machine area. On the day of the accident he had been working in that location for a couple of hours. He had walked over the ceiling space in the general area where the accident occurred about five times. There was room for the plaintiff to stand between the ceiling and the roof. The ceiling space was very confined. Movements were restricted by lots of machinery, service lines and air conditioning ducts. It was a cramped, crowded and hot area to work in (t 103). There was a hole in the ceiling to accommodate the light fittings but the light fittings had not been affixed (t 49.25). 16 The plaintiff was trying to feed a computer cable around an air conditioning duct. The air conditioning duct was about 12 inches square and in length went from the floor up through the ceiling. He was in what he described as a lying position where he was kneeling down on one knee but standing up on one foot (t 8.15). No evidence was given of the plaintiff's actual weight at the time of the accident but he weighed somewhere between 65 to 95 kilograms. He was 183 centimetres tall. The plaintiff gave evidence that he was positioned on a timber joist which held the ceiling up (t 8.20). His left foot and his right knee were placed on the one piece of timber (t 52.40-50). I shall return to the issue as to what structure the plaintiff had placed his feet upon shortly. Both his arms were outstretched as he was reaching behind the air conditioning duct which was positioned very close to the edge of a wall. His face was almost touching the air conditioning duct. 17 He had pulled about 10 metres of a 20 metre computer cable around the air conditioning duct. The next thing he remembered was being on the floor and looking back up at the ceiling. He had not felt any pre-movement of the timbers prior to his fall. He fell four metres onto the concrete floor. After the fall, the plaintiff observed that the section of the ceiling was no longer there and that there was a piece of timber hanging down and one piece of timber near his face. 18 It is convenient to refer to the Jones v Dunkel submissions at this stage. The second defendant served an expert engineering report of Professor Emmerson on the plaintiff two days prior to the hearing. The plaintiff's solicitor notified Professor Emmerson that he was required for cross examination. During the luncheon adjournment on the second day of this hearing, the second defendant's legal representatives elected not to rely on his report and informed him that he was no longer required. Professor Emmerson told the plaintiff's solicitor that he had been released. The plaintiff's solicitor did not request Professor Emmerson to stay as he was required by the plaintiff. The plaintiff submitted that I should draw a Jones v Dunkel (1959) 101 CLR 298 inference that the engineering report was not of assistance to the second defendant's case. 19 As Mahoney J stated in Fabre v Arenales (1992) 27 NSWLR 437 the Jones v Dunkel principle is not concerned with whether a particular inference of fact can be drawn. It is concerned with whether it should be drawn in a particular case. As the plaintiff's legal representatives had the opportunity to call Professor Emmerson to give evidence and did not avail themselves of it, I do not think that a Jones v Dunkel inference should be drawn in relation to the report of Professor Emmerson. Further the second defendant sought to tender Professor Emmerson's report. It was disallowed and not admitted into evidence on the basis that Professor Emmerson was required for cross examination and was unavailable. 20 Only the plaintiff and Mr Baldwin gave an account of the accident. The plaintiff also submitted that as the defendants did not call any witnesses at all, Jones v Dunkel inferences arose. It was put to the plaintiff that he had conversations with two employees of the second defendant after the accident. Those witnesses were not called. The plaintiff could not recall those conversations. I do not think it is appropriate to draw a Jones v Dunkel inference in relation to those witnesses who allegedly had conversations with the plaintiff. 21 The tradesman who constructed the area where the plaintiff fell in the first place was not called nor was the tradesman who fixed the ceiling after the accident. The tradesman who repaired the area afterwards would have been able to give evidence as to whether trimmers or a joist had to be replaced and what the ceiling looked like after the accident. He was not called. There was no attempt to explain the failure to call those witnesses. According to the plaintiff a Jones v Dunkel inference therefore arises and this inference applies equally to the second defendant's case. 22 There was no explanation by the second defendant as to why it did not call two witnesses who could have given evidence as to the quality of the workmanship relating to nailing of the trimmers to the joists and which timbers had to be replaced and what sort and numbers of timbers that were on the ground and remained hanging from the ceiling. I draw an inference that this uncalled evidence would not have assisted the second defendant's case. I do not draw this inference against the first defendant as the first defendant would not have been expected to call these witnesses. Was the plaintiff positioned on one or two trimmers or on a joist ? 23 The plaintiff gave evidence that he is almost certain that he was kneeling on a joist (t 33). By that he means that he was kneeling on a major structural member of the ceiling. In cross examination the plaintiff was asked many questions about a statement he had made in February 1993 (Ex B) to an investigator. At paragraph 62 of that statement he said that he presumed he had been kneeling on timber work but possibly a section of unsupported timber which was used as support for either lighting or air conditioning installation. During cross examination the plaintiff denied that he had been kneeling on a piece of unsupported timber. However he conceded that he may have been kneeling a piece of trimmer that was nailed in over the top of the joists and supporting the air conditioning duct and that it was a possibility that he could have put his weight on a piece of unsupported timber chosen to support the light fitting. 24 The plaintiff cannot remember how many trimmers were resting on top of the joists in the vicinity of the air conditioning duct. He conceded that it was possible that one of the pieces of timber that were nailed into position around the lighting and ducting might have given way and that is what he was seeking to convey when he made the above statement to the investigator (t 35.48). However he very much doubted that it was one of those timbers designed only to support lighting or air conditioning ducting that might have given way. 25 Later, the plaintiff agreed that what he was saying in February 1993 was that he believed that he was kneeling on timber work and possibly a section of unsupported timber (t 36.55). By "unsupported" he meant that it was not supported by a brick or timber wall but rather it was supported by another timber. The plaintiff agreed that a timber supporting the lighting was more likely to give way but did not concede that the timber surrounding the ducting was more likely to give way (t 38.35). The plaintiff also agreed that he should not put his weight on an unsupported timber such as one chosen to support lighting. He remembered the ceiling perfectly and knew that there was a "four by two" nailed in front of the air conditioning unit and he knew where his weight was positioned. 26 Mr Baldwin was working between six to ten feet away but around a corner when the plaintiff fell. He did not see the accident occur but heard a yell, a crash and someone cry out in pain. He made his way to the source of the noise. According to his recollection the gyprock had been freshly painted but it had broken away and either one or two timbers actually skewed out of the ceiling (t 84.20). He identified the timbers as being ceiling joists, possibly oregon. On further questioning Mr Baldwin stated that he could not recall whether they were joists, full joists or trimmers but he did not see any broken timber (t 84.30). Nor did he recall seeing any timber on the ground. 27 Mr Baldwin said that it was obvious to him that after the fall one or probably two trimmers had been dislodged (t 98.48) and that the plaintiff had applied all of his weight to one or two trimmers and perhaps had applied some force to try and get around the duct when the trimmers came apart and he fell through the ceiling. When asked if there was any possibility that any joist had come down, Mr Baldwin replied "No, this was - they certainly were not the long original ceiling joist." (t 98.53) Mr Baldwin said that if a joist had come down then the whole ceiling or a long portion of it would have come down (t 98.57; t 99.1). Overall he thought it was a trimmer. He could not remember if it was one or two trimmers which had come down. 28 In cross examination Mr Baldwin said that the obvious cause of the accident was that the pieces of timber had not been nailed together properly (t 92.52) and the strength of the timber was only as strong as the quality of the nailing. But he agreed that even if a light man such as himself had put his weight on a trimmer even if nailed correctly it would involve the risks of the trimmer collapsing (t 95.45). So Mr Baldwin has given two opinions as to the cause of the accident. 29 From the conflicting evidence of the plaintiff and Mr Baldwin, I have reached the following conclusions. On a number of occasions the plaintiff referred to having his left foot and right knee placed on the one piece of timber. He was almost certain that he was kneeling on a joist or a "four by two" nailed in front of the air conditioning timber but it was possible that he could have been kneeling possibly on a section of unsupported timber such as one chosen to support lighting. If the plaintiff by referring to a 4" x 2" meant he was kneeling on a joist it would not normally be nailed yet he referred to that being so. A possible but unlikely explanation is that he was kneeling on a shortened joist. Mr Baldwin did not see how the plaintiff was positioned prior to the accident. 30 It is unlikely that a joist had been shortened as the air conditioning ceiling duct was 12 inches square (30 millimetres) and the joists were 600 millimetres apart. There was ample room to fit the air conditioning duct which was located very close to the edge of a wall between two joists. There was at least one piece of timber left hanging from the ceiling and I accept the plaintiff's evidence that there was also a piece of timber near his face. It is my view that it is more likely than not, on the balance of probabilities, that the plaintiff had his left foot and right knee on one trimmer which had been nailed in over the top of joists directly in front of the air conditioning unit. What was the cause of the accident? 31 The plaintiff does not know what caused him to fall. The plaintiff had positioned himself precariously as he was kneeling on his right knee which meant that his right foot was unsupported. He did not give evidence that his right foot was resting on another trimmer or joist. His left foot and right knee were on the same trimmer directly in front of the air conditioning unit. His arms were outstretched with his face almost touching the air conditioning unit. I am satisfied on the balance of probabilities that because the plaintiff was placed in this awkward position he lost his balance and fell. 32 It is my view that the trimmer collapsed because most if not all of the plaintiff's weight was placed on one trimmer. On the balance of probabilities I am satisfied that the most likely cause of the trimmer giving way was because most, if not all of the plaintiff's weight was placed on it. When the plaintiff lost his balance and fell the trimmer came away from the joists during the fall. Alternatively, due to his awkward positioning on the trimmer he lost his balance and knocked the trimmer with force and then fell causing the unsupported timber around the air conditioning unit to dislodge, one such piece of timber ending up near the plaintiff's face. The piece of timber that was left hanging from the ceiling could also have been dislodged during the fall. Even though the person who nailed the trimmer on top of the joist was not called to give evidence I find that the trimmer was not incorrectly nailed. Even if the trimmer was not properly nailed over the top of the joists, it was the plaintiff's loss of balance that caused the trimmers dislodge. If there was any improper nailing, it did not cause or materially contribute the plaintiff's fall. The nature of the duty of care owed by the defendants 33 As the facts earlier recited show, Astra was the occupier of the premises and Rondal was the building contractor on site. Rondal had sub-contracted the electrical work to Inco. The plaintiff was the only full time employee, shareholder and the director of Inco. It was stated by Mr Baldwin that the carpenters were sub-contracted by Rondal. It is not known on what basis he formed the view that the carpenters were sub-contractors and I do not find that the carpenters were sub-contractors of Rondal. Further, the second defendant did not plead in its defence that the accident was caused by the negligence of the carpenters nor that the carpenters were sub-contractors. 34 The plaintiff submitted that the defendants owed the plaintiff a general common law duty of care. The plaintiff alleged that the defendants breached this duty of care in that they failed to warn or adequately warn the plaintiff of the dangerous nature of the ceiling framework; they carried out alterations to the ceiling framework which made it dangerous; they removed solid sheeting laid over the ceiling framework with a result that the framework was thereby rendered less stable and more likely to fall and that there was a real risk of injury to the plaintiff in permitting him to work in a ceiling with hidden or unusual dangers. It is convenient to state here that the allegation of negligence in relation to the removal of the solid sheeting cannot be made out as the plaintiff gave evidence that he could not use the plywood sheets even if they had been replaced in the ceiling because if the flooring was there he would not be able to put the wires through the joists. 35 So far as these particulars relate to fault directly attributable to Astra or to Rondal they depend upon there having been a personal duty of care reposed in them to exercise reasonable care to protect the plaintiff from foreseeable risk of injury, which called on them to ensure that they took adequate precautions for the plaintiff's safety while he carried out electrical work in the ceiling and not put him in a position of peril. It may be accepted that a risk of injury attaches in respect of any person who had to go on to a ceiling structure, erected by another, in order to carry out or complete building work in respect of that structure. It follows from the circumstances that such a person is expected to work at a height, and upon a structure for the security and soundness of which he had to rely upon the second defendant. 36 The scope of that duty of care is determined by reference to the circumstances, the foreseeability of the risk and the reasonableness to such a foreseeable risk. What is reasonable will vary with the plaintiff's entry upon the premises. The defendants are entitled to take into account that a person such as the plaintiff who comes onto the premises will take reasonable care for his own safety. In the case of skilled independent contractors who encounter risks ordinarily incident to the work they are invited onto the premises to perform, reasonable men in the position of occupiers would not foresee or if they did foresee would not think it reasonably necessary to guard against the occurrence of those injuries which are ordinary incidents of the work - see Papatonakis v Australian Telecommunications Commission (1985) 156 CLR 7 at pp 20-21; Christmas v General Cleaning Contractors Ltd [1952] 1 KB 141, 148; Bates v Parker [1953] 2 QB 231; Pinborough v Minister for Agriculture (1974) 7 SASR 493. Such contractors must provide their own safeguards against the normal incidental risks of their trade (Christmas at 148). 37 The first defendant was the occupier of the premises and admitted that it owed a duty of care to the plaintiff. The first defendant engaged a contractor, the second defendant, to carry out the renovation work. It was the second defendant who was obliged to provide skill and expertise and who had control of the work. The first defendant was entitled to rely on the second defendant's knowledge and skill in performance of building work and management of its employees and contractors. According to Mr Baldwin, he was satisfied that the roof was safe with the carpentry practices being undertaken by the second defendant (t 91.5). 38 Because Rondal had the physical control of the premises, it may also be accepted that it would have been foreseeable by Rondal that a electrician in the position of the plaintiff, would have had to go on to such a ceiling structure on this construction site and that a risk of injury would be attached to such activity, if the roof structure was not sound, or if the areas upon which the plaintiff could safely walk were not readily apparent or discoverable. 39 Because plywood sheets were not there the plaintiff stated that he took particular care. He realised that it was incumbent on him to ensure the area where he was working was safe (t 68). He did not observe anything that would have put him on notice that there might be some risk to him when he was working in the ceiling. 40 The plaintiff agreed that when an electrician is up in the ceiling he only puts weight on the structural members. The plaintiff admitted that in the ceiling, in addition to the structural beams, there were pieces of wood which were nailed between the structural beams and those cross beams were to support the lighting or air conditioning ducting (t 23). He agreed that the structural strength of the trimmers was only as good as the strength of the nails that attached them to the structural members but he held the view that both the structural members and the trimmers in the Astra ceiling would hold his weight. It was his experience of many years that if a trimmer was put in place properly it was definitely safe to stand on. This is at odds with the opinion of Mr Baldwin who said that even if a light man such as himself (at 65 kgs) had put his weight on a trimmer even if nailed correctly it would involve risks of the trimmer collapsing and it would be a better practice to spread both feet and hence reduce the risk of falling. 41 The plaintiff had been an electrician for 20 years and had done electrical work at the first defendant's premises for the previous 7 years during the Christmas break shutdown. He was familiar with the premises and with moving through the ceiling. The plaintiff as in previous years was himself competent to control his system of work without supervision by or direction from either of the defendants. It does not seem to me that either defendant should have reasonably been required to lay down a system for the performance by electricians and other independent contractors of their work in the ceiling or to supervise the electrician's compliance with any such system. The accident was caused by the plaintiff placing himself in a precarious position on one trimmer where he lost his balance and fell. He did not take reasonable care of his own safety and was the author of his own misfortune. It is my view that a reasonable man in either defendants' position would not have foreseen that his conduct involved a risk of injury to the plaintiff or to electricians carrying out work in the ceiling. The plaintiff would have been aware that it was imprudent to place all of his weight on a trimmer. It was not unreasonable to expect that the plaintiff would have become aware that he had to place himself in a precarious position on a trimmer, and that he would need to take steps to avoid that risk such as laying a spare piece of timber across the ceiling joist parallel and positioned as close as possible to the trimmer. He then would have been able to place some weight on the spare piece of timber as well as the trimmer next to the air conditioning unit. This would have provided a stable work platform to allow the plaintiff to safely position himself to carry out the work. 42 I do not regard the ceiling framework as being of an unusual or hidden danger, nor that the alterations to the ceiling framework were dangerous. It was imprudent of the plaintiff to place all of his weight on one trimmer. Once he decided to take this risky course of action, if he thought the trimmer was unsafe he could have tested it to see if the trimmer was nailed in on top of the joists. Accordingly the defendants did not have a duty to warn the plaintiff of the dangerous nature of the framework. 43 There is a verdict and judgment in favour of the defendants. There will be verdict for the cross defendants on the cross claims. As the defendants have been successful, the plaintiff is to pay the defendants' costs. As the cross claimants have been unsuccessful on the cross claims, they are to pay the cross defendant's costs. 44 In case I am found to be in error, I will record my findings as to the losses sustained by the plaintiff as a direct result of the accident which would (upon proof of a breach of duty of care) have been recoverable from either or both of the defendants. 45 It is noted that the plaintiff submitted that the cheap and practical responses to the foreseeable risk could have been firstly not to cut the joists at all; secondly to leave light fittings as they had been before; thirdly to use small light fittings between joists; fourthly notch in the trimmers; fifthly warn the plaintiff either by oral warning, a sign at the entry points to the ceiling or other means such as paint or arrows etc not to stand on particular joists because they had been cut and sixthly to make available a piece of timber 100 x 50 which was long enough that could have been laid across the top of two ceiling joists. Mr Baldwin was asked whether the correct way to redo the ceiling was to lay new ceiling joists rather than cut joists and trim out. He agreed that technically the correct way was to lay new ceiling joists. However he conceded that he was satisfied with the appropriateness of the carpentry practices undertaken in the ceiling and that the work completed was safe. 46 Mr Baldwin suggested that if there was an area with cuts in the ceiling joists and trimmers and it was not possible to put down a plywood sheet, the area could be made secure by using a piece of timber 100 x 50 which was long enough to be laid across the top of the other ceiling joist and wall or carry out work on that piece of timber. This would have provided a stable work platform. If either or both of the defendants breached their duty of care to the plaintiff, they could have instructed the plaintiff to lay a spare piece of timber on top of the other ceiling joist next to the trimmer to provide a stable work platform. This would be a cheap and practical response to the risk. Plaintiff's injuries and disabilities 47 When the plaintiff fell he hit his head on a wall. He hurt "like hell". He could not pivot his head, his back was sore and his right hand hurt more than his left one. For the next few days his head, neck and wrists were very sore. His back was "murder". His head was painful for a short while after the accident. The bruising took a short time to go away. The right wrist was sore for a few months but gradually the symptoms in his right wrist resolved. 48 After the accident the plaintiff was taken to hospital and had x-rays done. In relation to the cervical spine down to mid C7, there was no para vertebral soft tissue swelling seen. There was a fracture of the scaphoid with minor separation of the fracture seen. There was no fracture to the right wrist. He was diagnosed as having sustained a fracture of the left carpal scaphoid bone and his left wrist was placed in plaster for a period of two months. None of the doctors in the reports tendered disagree with this diagnosis. Once the plaster was removed, his left wrist was placed in a removable splint. He underwent courses for mobilising and strengthening exercises to the left wrist. 49 An x-ray taken 29 December 1992 of the lumbo sacral spine showed that there was a minor congenital abnormality which was almost certainly asymptomatic but there was a minor right sided disc bulge at the L4/5 level and early degenerative lipping of the right L5/S1 facet joint. In 1993 the plaintiff was reviewed by Dr Ruff, the surgeon who told the plaintiff that he had no major worries as a result of the fall on the back and the nerve exit foramina in between the vertebra were clear despite the disc bulge. Rest and physiotherapy were recommended. 50 In mid 1993 the plaintiff was still complaining of swelling and tenderness at the front of his left wrist and x-rays confirmed the presence of a displaced non-united fracture of the scaphoid tubercle. Dr Herbert's view was that the problem with the plaintiff's left wrist was consistent with a history of injury as given but unfortunately the plaintiff developed an unusual complication of non-union through the distal pole of the scaphoid which required surgery. This was complicated by the development of a cutaneous neuroma which may have been responsible for some of the plaintiff's ongoing symptoms. Dr Herbert said that the fracture had also left the plaintiff with some deformity of the scapho-trapezial joint, which may also be contributing to his symptoms and increased the risk of secondary osteoarthritis. He was of the view that because of the plaintiff's ongoing symptoms he had been forced to give up his employment as an electrician and change to clerical work instead. The plaintiff had an operation on his left wrist. After the operation the plaintiff underwent intense physiotherapy but there was no improvement in the condition of his wrist although Dr Herbert noted that he regained virtually a full range of motion in the wrist. 51 The defendant tendered a report of Dr Cummine dated 14 September 1997. It was his view that the plaintiff appeared to have sustained a minor fracture of the left scaphoid and soft tissue injuries to the right wrist, neck and back. He was of the opinion that the non-union of the scaphoid tubercle would not require surgical intervention and a fibrous non-union would be compatible with normal function and that it was unlikely to produce any significant long term consequences. However Dr Cummine had not seen the x-rays of the plaintiff's wrist and his opinion is at odds with that of Drs Conrad, Caspary and Herbert. I prefer the evidence of the latter doctors. 52 Dr Conrad in his report dated 6 August 1996 stated that on the left wrist there was a surgical scar over the left scaphoid on the ventral surface and a 10% loss of flexion extension and lateral movement. There was a weakness of grip of the left hand and tenderness over the area. It was Dr Conrad's view that the plaintiff suffered a back strain associated with mild bilateral sciatica and a fracture of the left scaphoid bone in his left wrist. Dr Conrad found that the plaintiff needed conservative treatment and was fit for light work which did not involve heavy lifting, repetitive bending, standing or sitting in the one position for any length of time or heavy repetitive work with his left wrist. He did not believe that the plaintiff could do full on work of a commercial electrician because of the need to climb into confined spaces and lift heavy material, which was often of a repetitive nature. He believed the plaintiff would be able to do light work, such as light social work, or administrative work or clerical work but would not be able to use a computer or do a lot of keyboard work. He thought that the plaintiff might be able to do some light cleaning work or security work. Mr Rymer, a chiropractor in his report dated 15 October 1996, and Dr Caspary, an orthopaedic surgeon in his report of 1 April 1997, agreed with this opinion. Dr Caspary was also of the view that the plaintiff could expect ongoing pain in his lumbosacral spine. 53 The plaintiff's current complaints are that he has a great neck provided he does not use it too much. Nodding his head causes pain and he cannot swivel his head around to talk to students. The plaintiff's neck has remained in the same condition. There are periods when his neck is pain free. His back is never pain free and is getting worse. He cannot clean the bathroom walls or the floors. He cannot master ironing sitting on a stool. The above activities cause back pain because he is bending at a slight angle but he can paint. He does not take any regular medication. 54 The plaintiff described the current condition of his left wrist as hopeless. The plaintiff's dominant hand is his right one. According to the plaintiff he does not have 10 percent of the strength in his wrist that he had prior to the accident although I think that he has somewhat more strength in his wrist than his estimate. It is difficult to lift a can off the supermarket shelf. He can lift his left wrist and arm. He has a scar on his left wrist. However, he does not have full movement in rotating his left thumb but can rotate his fingers but not to the extent he could before the accident. The fleshy part of his palm below his thumb aches "like hell" and his fingers lock up and stop working. He does not have full movement in his fingers. His wrist is getting worse as he cannot keep the muscle strength up and the muscles around his wrist are wasting away. His left wrist aches all the time but he has become accustomed to it. 55 Prior to the accident the plaintiff enjoyed playing tennis and coaching school children after school in soccer and basketball and netball. He is a trained soccer coach. His general health was good. After the accident he could not play sport nor coach it. Even though he could kick a ball and run a little he was not able to do these things to the standard necessary. Nor could he enjoy them. 56 The plaintiff claims general damages of $100,000 and interest at 2% on half ($50,000) for 6.5 years = $6,500. 57 For a while after the accident the plaintiff experienced pain in his head and right wrist but these resolved. I take into account that the plaintiff has suffered a serious and permanent injury to his left wrist. I accept that his left wrist has little strength and movement, it aches, his thumb and fingers are restricted, his fingers lock up and his muscles are now wasting away. He continues to suffer pain in his back and neck. He cannot sit or stand in the same position for extended periods of time. He cannot play sport or enjoy sporting activities and has difficulties with household chores. He cannot work as an electrician or in a similar trade as he cannot work in floor or ceiling spaces and crouched positions and pull cables with his hands. 58 Having taken the above into account I would have assessed general damages at $80,000. I would have assessed interest on general damages at 2% on $40,000 for 6.5 years. This amounts to $5,200. Past and future loss of earning capacity 59 Damages for both past and future loss are allowed to an injured plaintiff because the diminution of his earning capacity is or may be productive of financial loss. The plaintiff claims that as a result of the injuries that he sustained in the accident he is unable to return to his pre-accident employment as an electrician. For past loss of earning capacity the plaintiff claims $800 net per week from the date of the accident to date, less what he has earned. In total the plaintiff claims $65,000 for past economic loss and interest on $26,865 at 6% for 3.5 years = $5,641. Interest calculated on $26,865 at 11% for 3 years is $8,865. For future loss of earning capacity the plaintiff claims $500 per week discounted at 3% and 15% for vicissitudes. The amount claimed for loss of future earning capacity is $346,970. 60 In relation to past earnings, the income that Inco obtained was due solely to the endeavours of the plaintiff in both obtaining work and carrying out the work of an electrician. From time to time Inco employed casual tradesmen. Their wages were paid by Inco. All of Inco's income was paid into the Wilke Family Trust (the trust). It was in the discretion of the trustees as to the amount each beneficiary received from the trust each year. 61 Between 1990 and 1994 the plaintiff derived income from Inco Electrical Pty Limited and the Wilke Family Trust. In 1990 the trust earned $295,357. The plaintiff received $35,000 as wages and $18,910 from the trust totalling $53,910. The plaintiff's taxable income was $51,544 less tax $16,898 = $666 net per week. Jill Wilke received $35,000 as wages and $18,910 from the trust = $53,910 = $670 net per week. In 1991 the trust earned $267,005. The plaintiff received $18,451 as wages = $263 net per week and nil from the trust. In 1992 the trust earned $145,050. The plaintiff received $20,000 as wages and $10,085 from the trust = $440 net per week. The average net weekly earnings for this 3 year period = $680. As can be seen from the amounts, that trust earned and the distributions made to the plaintiff during the financial years 1990 to 1992 fluctuated from $263 net per week to $666 net per week. The wages paid to the plaintiff by Inco Electrical were modest. The income that the plaintiff derived from the trust was also modest in comparison to the income received by the trust. 62 In mid 1993 the plaintiff attempted to go back to work but he could not physically do the work. He tried to supervise and employ workers but with the size of the jobs he was doing he could not make enough profit. He tried for a couple of years to get back to work. In 1993 the plaintiff had a taxable income of $35,968 ($27,240 Inco Electrical Pty Limited and $9,923 from the trust). Dr Urs, the plaintiff's general practitioner assessed that the plaintiff was unfit for work until 8 August 1994. I accept that the plaintiff was unfit for work until 8 August 1994. For the year ended 30 June 1994 the plaintiff had a taxable income of $33,149 derived from Inco Electrical $20,000 and $13,115 from the trust ($480 net per week). Inco ceased to be active. 63 On 14 September 1994 the plaintiff was employed at the Ryde Family Support Service as a centre co-ordinator. This centre was called the Kuringai Career Transition Centre and its aim was to locate and try to find work for families of people who had become unemployed. The plaintiff said that the only qualifications he needed to get the job was his driver's licence and his own car. While employed at the centre he undertook counselling work although he was not qualified in that field. He made an attempt to obtain some qualifications and attended the College of Applied Psychology full time for one year and then another year part time then he ran out of money and was unable to continue. (t 14.38; t 15.20). For the year ended 30 June 1995 the plaintiff had a taxable income of $25,845 ($400 net per week) derived mainly from Ryde Family Support Service. 64 As well as his job with the centre the plaintiff worked part time from August 1995 until January 1996 for an organisation called Options Community Training as a case manager working with the long term unemployed. He was also involved in counselling unemployed professionals. The plaintiff left this employment as he was unable to handle the pressure. (t 15.40-53; t 16.5-10). The plaintiff was unemployed from March 1996 until August 1996. For the year ended 30 June 1996 the plaintiff had a taxable income of $20,807 ($334 net per week). 65 On 23 August 1996 the plaintiff commenced working for Bridge Business College (the College) as a computer teacher although he had no qualifications in that field. At present he is employed as a business teacher at the college on a part time casual basis. For the year ended 30 June 1997 the plaintiff had a taxable income of $40,347 ($775 net per week). He normally works four days a week but has been off work of late because his back "has been a bit of a shit" (t 16.35-55). He teaches one or two students in each class (t 45.50) and teaches such subjects as workplace industrial relations, workplace reform and industrial environment. For the first years with the College he taught a course in computers for which he had minimal skills. He currently earns $30 per hour and works about 30 hours per week. He does not think that he can physically work 40 or 50 hours per week. The plaintiff also said that it was a lot of pressure to do that much teaching work. Currently the College does not have any more work available (t 46). 66 So far as the future is concerned the plaintiff said that he needs a change as his job at the College caters to overseas students and as the Government is continually revamping the private colleges to bring them up to a higher standard, part of that being that teachers are to have some teaching qualifications in the field that they are teaching, and he does not have any qualification other than having done a "train the trainer" class for three days (t 17.20.). With teaching, he can move about if his back gives him trouble. He can sit in a chair and when his back hurts he can get up and sit on a table or walk around a room. He is capable of continuing his employment as a teacher. 67 Mr Keith Dawes, a psychologist, in his report dated 23 February 1994 stated that he assessed the plaintiff's intellectual capacity by administering the Wechsler Adult Intelligence Scale. The plaintiff's verbal ability and performance score was better than 80% of the general population. In terms of intelligence the plaintiff was assessed as better than 85% of his peers. It was Mr Dawes' view that the plaintiff would operate competently as an independently employed counsellor, a trades co-ordinator or as a member of a health based team. He had a considerable experience in managing people, relating to clients, record keeping and planning. He had demonstrated ability to manage others. Mr Dawes' opinion was that the plaintiff showed a clear indication of success in retraining as a counsellor/co-ordinator. He has the necessary intellectual capacity, interest and personality attributes to successfully complete tertiary study. The course of study which he has selected is highly likely to fulfil his need for successful retraining. 68 The plaintiff gave evidence that as much as he would love to go back to being an electrician, because of the state of his back and wrist this is not possible (t 17.30). He can dig for a short time with one hand. He cannot do two handed tasks. He cannot work in floor and ceiling spaces in crouched positions. He can not pull cables with his hands. It would be necessary for him to do these movements to carry out his tasks as an electrician. As previously stated, the plaintiff's view that he cannot return to work as an electrician is supported by Drs Caspary, Conrad and Herbert and I find that due to the injury to the plaintiff's wrist suffered in the accident, he is no longer able to work as an electrician. I accept that after the accident the plaintiff attempted to employ and supervise casual employees but found that running the business without the benefit of his labour was not viable. 69 In Husher v Husher & Anor [1999] HCA 47, The High Court (Gleeson CJ, Gummow, Kirby and Hayne JJ) stated (at para 18) that the financial loss of what (if there had been no accident) the injured plaintiff would (as opposed to could) have expected to have under his or her control and at his or her disposal by exercising that earning capacity are the financial rewards from work that are the rewards that the plaintiff would have been able to direct to whatever purpose or destination the plaintiff chose. In the present case, the whole of the income of the trust came from the efforts and the exploitation of the plaintiff's earning capacity. As a matter of practical reality the contribution of the plaintiff's father and later those of his wife contribution to the trust were negligible. 70 The Wilke Family Trust was a trust that could be wound up and the assets distributed. It was the plaintiff's choice as to whether the trust was maintained. If he chose to make some other arrangement concerning the fruits of his labour, the effect would have been given to that choice whatever view his father or wife would have held. This raises two questions: (1) would the plaintiff, but for the accident, have continued as an electrician with the current financial arrangement; and (2) what would have been his earning capacity? 71 In relation to the amount that should be allowed for payment of taxation, the High Court in Husher referred to Spargo v Haden Engineering (1993) 60 SASR 39, a decision of the South Australian Court of Appeal. The High Court accepted the adjustment made by Perry J. In Spargo the plaintiff had been employed as a sheet metal worker by a company which was trustee of a discretionary family trust. The plaintiff had generated the only income received by the trustee company and that income was distributed to the plaintiff and members of his family. The court held that the damages to be allowed to the plaintiff for loss of future earning capacity should be calculated by reference to the whole of the income he had generated. Perry J said: "But it does not follow that if the Court should properly have regard to the total income produced in the business in assessing the plaintiff's loss of earning capacity, in determining the net income for the purpose of calculating the amount to be allowed for loss of earning capacity, only the small amounts of tax, if any, paid by the various family members with reference to the amounts allocated to them, should be deducted. To do so, is to be over-generous to the plaintiff. If he is to be given the benefit of aggregating the distributed income for the purposes of measuring his earning capacity, the allowance for income tax in determining the net earnings should approximate the amount which he might have paid on the gross earnings if they had been brought to account by him rather than by the family trust." 72 The plaintiff to some extent, would have exploited his own earning capacity to generate net income of a particular amount. I say to some extent, because the amount the plaintiff could earn as an electrician is dependent on the amount of work that is available in the building industry at any particular time and this fluctuates. However, there is no reason to doubt that, but for the accident, Inco would have continued to be sub-contracted by Rondal to carry out electrical work. 73 It is my view that the plaintiff may not have continued being self employed (through his company) as an electrician until his retirement at 65 years even if he did not have the accident. At the time of the accident the plaintiff had been involved in the electrical trade for almost 20 years. The plaintiff gave evidence that until then it had been a passion. However by 1987, the plaintiff recognised that he did not want to still be walking through ceilings when he was 65 years old but that he still wished to continue working as a tradesman but doing different types of electrical work (t 40.15-35). In cross examination the plaintiff admitted he has always been interested in psychology but denied that in 1987 he nearly left his work as an electrician to go to university and study psychology. This is at odds with a letter (Ex 1D/4) he wrote to a psychologist dated 13 March 1987 that he was suffering from burn out and this year he nearly left work and went to university to study psychology as his major subject. The plaintiff's explanation was that he was going through a very bad emotional state and had been told by the psychologist that he was experiencing "burn out". The plaintiff thought a change in career could bring life back into the family and fix his problems. After thinking about the career change, he decided not to adopt this course. He admitted that he always wanted to be a counsellor and when he resumed work after the accident, that is exactly the path he followed. 74 The plaintiff had expressed a desire to make a career change, but continued to work as an electrician for a further 5 years to the date of the accident. He would have, whether or not the accident occurred, attempted to ease himself out of the physical work of an electrician as he did not still want to be walking through ceilings when he was 65 years old. He may have still been working in the trades but in a more supervisory role or alternatively he may have pursued his desire to be a counsellor. He has always demonstrated the commitment to work and that did not and would not have changed whether the accident had occurred or not. He would have continued to earn a reasonable income. Doing the best I can, I would find that the plaintiff would have earned $700 net per week from two sources, Inco Electrical and the distributions from the trust. I would have assessed the plaintiff's past economic loss from 24 December 1992 to 8 August 1994 at $700 net per week. From 8 August 1994 to date I would have assessed the plaintiff's past economic loss as being what he could have earned at $750 net per week less what he has actually earned. The parties can calculate this amount and interest due on past economic loss. 75 For the future, he would have earned $800 to $900 net per week. He probably could have earned more taking into account the comfortable position of the trust but he would have, in some years in the future, made a career shift which may have resulted in a decrease in financial remuneration for some time. He is currently earning about $764 net per week but I accept that this job is insecure and the plaintiff may be forced on the open labour market where he has limited experience and qualifications. He cannot do physical work nor stand or sit for long periods of time or use his left hand. He is intelligent and resourceful, can manage people, keep records and plan. He is self motivated. I assess his loss of earning capacity at $100 net per week until he reaches the age of 65 years. This should be discounted at 3% and 15% for vicissitudes. The parties can calculate this sum. Past Out-of-pocket expenses 76 Past out-of-pocket expenses have been agreed at $19,807. These out-of-pocket expenses have been paid. Workers compensation payback 77 Workers compensation payback is $38,135. Future out-of-pocket expenses 78 The plaintiff claims $10,000 for future out-of-pocket expenses. I would not have allowed this sum. Future treatment 79 In the Part 33 particulars the plaintiff has claimed $15,000 for the costs of operative treatment for a fusion in the left wrist in the not too distant future. Dr Caspary estimated that the costs of a possible limited fusion which would include overall hospital, medical and associated costs would be in the region of $8,000. The period of hospitalisation would be 2 to 3 days and the period of total absence would be for about 2 months. A further period of 4 months of light duty restrictions would apply. The plaintiff's treating orthopaedic specialist does not specifically recommend it and the plaintiff did not give any evidence that he would contemplate undergoing this operation and appeared reluctant to have any further treatment. It is my view that it is unlikely that he will undergo this operation but in accordance with Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 I should make some allowance for the possibility. I would have allowed the sum of $1,800.00. 80 The orders I make are: (1) Verdict and judgment in favour of the defendants. (2) The plaintiff is to pay the defendants' costs. (3) Verdict for the cross defendant on the cross claims. (4) The cross claimants are to pay cross defendant's costs on the cross claims. ********** Last Modified: 10/25/1999 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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