New South Wales Court of Appeal CITATION : ZAHNER v ANDREAS PTY LIMITED & BORAL BUILDING SERVICES PTY LTD [2001] NSWCA 352 FILE NUMBER(S) : CA 40095/00 HEARING DATE(S) : 26 June 2001 JUDGMENT DATE : 4 October 2001 PARTIES : Terrence Alan ZAHNER v W ANDREAS PTY LIMITED & BORAL BUILDING SERVICES PTY LIMITED JUDGMENT OF : Mason P at 1; Fitzgerald AJA at 2; Grove J at 44 LOWER COURT JURISDICTION : District Court LOWER COURT DC 9224/97 FILE NUMBER(S) : LOWER COURT Freeman DCJ JUDICIAL OFFICER : Appellant: A Morrison SC/J Carr COUNSEL : 1st Respondent: Not represented 2nd Respondent: J Maconachie QC/R Page Appellant: Mulally Mylott SOLICITORS : 1st Respondent: Not represented 2nd Respondent: Phillips Fox CATCHWORDS : PERSONAL INJURY - workplace injury - scaffolding collapsed - STATUTORY DUTY - breach - Whether regulation applies to a head contractor - where head contractor has an obligation to maintain scaffolding, head contractor liable - scaffolding unsuitable and unsafe - whether a person is bound by the regulations will depend on whether a person is actually carrying out the building work - Construction Safety Act 1912 - Construction Safety Regulations 1950 cll 6, 73 - NEGLIGENCE - breach of duty of care - whether contractor had a duty to ensure scaffolding was safe where subcontractor skilled and experienced - DAMAGES - quantum for - where injury causes depressive reaction - award inadequate to reflect the appellants losses Construction Safety Act 1912 LEGISLATION CITED : Construction Safety Regulations 1950 Law Reform (Miscellaneous Provisions) Act 1965 CASES CITED: Doval v Anka Builders Pty Limited (1992) 28 NSWLR 1; H C Buckman & Son Pty Ltd v Flanagan (1974) 133 CLR 422; Haines v Bendall (1991) 172 CLR 60; Maggiotto Building Concepts Pty Ltd v Gordon [2000] NSWCA 2001; Malec v J.C. Hutton Pty Ltd (1969) 169 CLR 638 DECISION : See pars 42 and 55. IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40095/00 DC 9224 of 1997 MASON P FITZGERALD AJA GROVE J Thursday, 4 October, 2001 ZAHNER v W ANDREAS PTY LIMITED & ANOR JUDGMENT 1 MASON P: I agree with Fitzgerald AJA and Grove J. 2 FITZGERALD AJA: On 31 January 1980, the appellant, Terrence Alan Zahner, was injured when scaffolding which he was dismantling collapsed and he fell with it. The scaffolding had been used in connection with the construction of a building. 3 The first respondent, W. Andreas Pty Limited, was the principal contractor for the construction of the building. Andreas sub-contracted parts of the work to others. It sub-contracted the supply, erection, and dismantling of scaffolding to the second respondent, Boral Building Services Pty Limited. Boral provided the scaffolding material but in turn sub-contracted the erection and dismantling of the scaffolding to others. 4 One sub-contractor to Boral was Pyramid Scaffolding. On or about 18 January 1980, Pyramid erected the scaffolding at the location where Zahner was subsequently injured. In the interim, the scaffolding had been used by another subcontractor to Andreas, described as a "roofing plumber", in carrying out its work. 5 Zahner was engaged by Boral to dismantle the scaffolding after the roofing plumber finished its work. He and two of his employees were doing so when he was injured. 6 Zahner sued Andreas, Boral and Pyramid Scaffolding in the District Court. He alleged that each was negligent and breached the Construction Safety Regulations 1950 (the "regulations"), made under the Construction Safety Act 1912 (the "Act"). His action was dismissed. The trial judge also held that, if Zahner had succeeded only in his negligence claim, his damages would have been reduced by 75% because of his contributory negligence. His damages were assessed at $228,149.70, plus interest of $14,000.00. 7 Zahner appealed against the dismissal of his claims against Andreas and Boral. Andreas did not participate in the appeal. 8 Zahner argued that each of Andreas and Boral should have been held liable and that the trial judge erred in finding contributory negligence of 75% when assessing damages. 9 The trial judge described the scaffolding and Zahner's activities prior to his accident in the following terms: - "It was of a relatively new type known as 'modular' that is the pieces came in predetermined standard lengths and were assembled by inserting the ends of the horizontal (and diagonal) pieces into receptacles which were clustered in a star shape around the circumference of the vertical pieces which were known as 'standards'. Adjacent standards were, along the length of the scaffold, joined by 'ledgers' that is lengths of circular section metal members. Across the scaffolding the adjacent standards were joined together by shorter members known as 'transoms' which were L-shaped in section so that the horizontal surface would provide a base to support the planks ultimately to be laid longitudinally to provide the working platform. The first stage or lowest level of the scaffolding did not require planks but was formed into the box or rectangle by the four standards connected in the fashion described above by two ledgers and two transoms. Such a structure was called a 'bay' and each level was referred to as a 'stage'. About two metres above the level of the first rectangular conformation or stage a similar box consisting of two ledgers and two transoms was formed by fitting their ends into the clusters arranged at that height on the standards. This process was repeated with additional standards being fitted into the top of the existing ones so that the structure grew to the requisite working height by stages each about two metres above the one below. Bracing, that is diagonal members, would be fitted from the lowest star or cluster across both the face (that is the longitudinal aspect) of the scaffold and across the ends. The clusters into which these braces fitted were dictated by the lengths of the braces. The finished structure was about twelve bays long, that is approximately 14 or 15 metres, 1.2 metres wide and four stages high, that is the working platform was about eight metres above ground. The planks forming the working platform were (obviously enough) of rectangular section and about 50mm in depth or thickness. The ledgers were round with diameter also of about 50mm. The ledgers sat in line with the standards that is outside the platform formed by the planks. All components were galvanised and consequently of the same colour. About one metre above the working platform a ledger was installed to act as a handrail. At the southern or left hand end of the scaffolding as one looked at the building the ledger on the outside edge of the platform was missing. It appears that all other ledgers both along the face of the platform and at all levels below both on the inner and outer aspects of the scaffolding were in place. The plaintiff climbed to the working platform level using a ladder which he says was leaning against the facade of the building and not concreted to the scaffolding. He climbed over the end of the scaffold, that is the southern end, and proceeded to attempt to remove the hand rail on the outside of that southernmost bay. The scaffold had been erected closely adjacent to the building so that the eaves of the building roof projected out over the working platform. The facia (inside which had been built a box gutter) acted as a hand rail on the inside face of the scaffolding. No planks had been laid beneath the soffit of the eves so that each working bay had three planks instead of the five which the full width of the scaffold as designed would accommodate. To remove the hand rail the plaintiff had to tap (or in this case, he says, 'hammer') the end of the ledger forming the hand rail up and out of the cluster in which it was inserted. Whether he tried to do this first on the outside corner standard or on the adjacent more northerly one is unclear. … it is clear that the plaintiff, eventually at least, raised the end of the hand rail from the second standard with the other end still connected to the corner or most southern standard. Because there was no ledger connecting these two standards at the level of the working platform the plaintiff's action permitted or it may indeed have precipitated (by lever action) the southern corner standard to rotate or to splay slightly away from its former position. The southern transom attached to this standard moved, at its outer end at least, to the south. This movement was sufficient to withdraw its support from beneath the uppermost plank of the platform. This fell and the plaintiff fell with it. At the time at which the plaintiff fell, at least, there was no bracing on the scaffolding nor was it tied to the building. Diagonal bracing is designed to prevent sideways swaying or movement of the scaffolding structure whilst ties to the building prevent the scaffolding from toppling away from the building". 10 His Honour found that the scaffolding had been correctly erected by Pyramid but that ties, bracing and a ledger were subsequently removed. Zahner had "observed and understood that there were no ties and no bracing." His evidence was that "these items were already missing when he arrived and examined the structure". The trial judge considered that "the tie at least may have been removed by the roof plumbers in order to place the last pieces of covering on the soffit before they left the scaffold", but also said that Zahner "… may have removed at least the tie nearest to his working position and the braces which are the first things to be removed in dismantling. Removal of the tie would at least have been logical as… this action would be among the first to be taken by anyone intending to dismantle the scaffolding". His Honour found that "[t]he probability is that the ledger was removed by the [roof plumber] working on the scaffolding to facilitate (in their opinion) access for themselves and the material they were using." 11 Zahner overlooked the missing ledger. Because there was no ledger, the scaffolding rotated and splayed away from its former position when Zahner "raised the end of the handrail from the secured standard", causing the scaffolding to collapse. Zahner's case can conveniently be considered by reference to the missing ledger. 12 Zahner relied on clauses 6(1), 7, 73(1) and (3), 86(11) and 87(1), (2) and (4) of the regulations. Clauses 7 and 73(3) do not add to his case based on the other clauses, and need not be discussed. 13 Clause 73(1) of the regulations provides: - "73 Any person who directly or by his servants or agents carries out any construction work shall take all measures that appear necessary or advisable to minimise accident risk and to prevent injury to the health of persons engaged in such construction work and for this purpose, without limiting the generality of the foregoing, he shall - (1) provide suitable and safe scaffolding, which shall conform to the requirements of these Regulations, for all work which cannot be done safely by a person standing on permanent or solid construction, except when such work can be done safely from ladders constructed in conformity with the provisions of these Regulations; ………" 14 Section 3 of the Act defines a number of the terms used in the regulations, including "Construction work" and "Scaffolding". It is unnecessary to refer further to the definition of "Scaffolding". For present purposes, "Construction work" is "Building work", which, by s3, means: "(a) work in constructing, erecting, installing, adding to, altering, repairing, equipping, finishing, painting, cleaning, signwriting, sheathing, spraying, dismantling or demolishing ….. that: (i) is done in relation to a building or structure at or adjacent to the site thereof,..". 15 Plainly, if clause 73(1) applied, the missing ledger meant that the scaffolding was not "suitable and safe". 16 Clause 73(1) also recognises that there are "requirements" in relation to scaffolding in other regulations. Express provision is made in relation to scaffolding in clause 87, including provision for ledgers in clause 87(4). The trial judge was not satisfied that the scaffolding which collapsed was of a type to which clause 87 applied. However, that is not significant because of clause 86(11), which provides: - "86. (11) New types of Scaffolding. - All scaffolding for which specifications have not been given in these Regulations, and all patented or manufactured scaffolding, parts of scaffolding or scaffolding devices, and all types of scaffolding developed subsequent to the date of proclamation of these Regulations shall be of at least a strength, rigidity and safety equivalent to those of scaffolding for which specifications have been given in these Regulations." 17 Because of the missing ledger, the scaffolding did not comply with clause 73(1) if it applied, not only because the scaffolding was not "suitable and safe" but also because it did not "conform to the requirements of [the] regulations." 18 The requirements concerning scaffolding in clauses 86 and 87 of the regulations are not material only in relation to clause 73(1). Because clauses 86 and 87 do not specifically impose their requirements on a particular person, clause 6(1) is applicable. 19 Clause 6(1) provides: "6. (1) Where the obligation to observe any of the provisions of these Regulations is not by these Regulations specifically imposed on any person it shall be the obligation of every person who directly or by his servants or agents - (a) carries out any building work, excavation work or compressed air work; or ( b) designs, constructs, erects, sets up or builds, or sets or places in position, works, uses, tests or maintains any crane, lift, hoist, scaffolding, plant or gear, or roof sheathed or intended to be sheathed with asbestos cement or other brittle material, to comply with the provisions of these Regulations in regard thereto. …" 20 As in clause 73(1), the obligation in clause 6(1) to comply with the requirements in the regulations in relation to scaffolding is imposed on every person who carries out any building work or engages in one or more of the activities specified in clause 6(1)(b) "directly or by his servants or agents". 21 It is convenient to deal first with clauses 73(1) and 6(1)(a), each of which is applicable to persons who carry out building work. In order to determine who carried out material building work, it is first necessary to identify the building work in question. 22 In H C Buckman & Son Pty Ltd v Flanagan (1974) 133 CLR 422, Barwick CJ, with whom Stephen J agreed, said at pp 428-429: "Building work is so defined that it does not necessarily refer to the total work to be performed in a building, but the definition is suitably worded to enable each section of work being done, e.g. as "painting, cleaning and signwriting", being regarded as building work so that the obligation to take the specific safety measures are imposed on that person who is carrying on or carrying out that particular work." 23 McTiernan J said at p 432: "The work described includes specific functions, such as "erecting" (which was the respondent's function in this case) rather than the whole construction undertaking itself." 24 Mason J, with whom Jacobs J agreed, said at p439: " The definition is not expressed by reference to the erection of a particular building or structure. It looks to particular activities or operations of the character described which may be undertaken in relation to a building or structure. No doubt the erection of a building may fall within the statutory definition but that is because the totality of the activities or operations which are involved in the erection of the building answers the description contained in the definition .." 25 In Buckman, the majority (Barwick CJ, McTiernan and Stephen JJ) held that building work carried out by an independent sub-contractor is not also carried out by the head contractor or other person who engaged the sub-contractor to carry out that work, and that obligations imposed in respect of that work by clause 73(1) are imposed only on the independent sub-contractor who actually carried out the work, who is the only person liable for breach of that clause to a person who is injured. In Buckman, it was held that, on the facts, the head contractor might be liable to the injured sub-contractor only because the particular section of the sub-contract work which involved a breach of clause 73(1) might have been carried out by the head contractor itself. 26 In accordance with Buckman, building work which was carried out by independent contractors was not carried out by Andreas or Boral. 27 Pyramid, not Andreas or Boral, carried out the erection of the scaffolding. Pyramid did not breach the regulations. The trial judge was "satisfied the scaffolding was properly erected by [Pyramid]", and that conclusion was not challenged in this Court. If Pyramid had breached the regulations, neither Andreas nor Boral would have been liable to Zahner if that breach had caused or contributed to his injury. 28 Similarly, it was Zahner, not Andreas or Boral, who was dismantling the scaffolding when he was injured. Any breach of the regulations in relation to that work was a breach of the regulations by Zahner, not Andreas or Boral. 29 It does not necessarily follow that neither Andreas nor Boral materially breached clauses 73(1) and 6(1)(a) of the regulations by reference to other building work which it carried out or that neither breached clause 6(1)(b) by reference to other activities in which it engaged. 30 The balance of Zahner's breach of statutory duty case against Boral was based upon the involvement of one of its employees, Mr Bayfield, who gave evidence that, if he had observed a defect in the scaffolding such as the missing ledger, he would have directed that the defect be remedied. The trial judge said: "Mr Bayfield who was himself a ticketed scaffolder was employed by Boral as a salesman and he was frequently on site to ensure (inter alia) that the work the various scaffolding subcontractors had undertaken had in fact been performed so that they could be paid and so that his own company could charge Andreas" 31 However, Boral's sub-contract with Andreas was only to supply, erect and dismantle scaffolding, and Boral sub-contracted all but the supply component to independent sub-contractors. Importantly, all the work which it sub-contracted was sub-contracted by Pyramid (which Zahner accepts did not breach the regulations) and to Zahner. Neither Boral's activities nor its obligations were extended by Mr Bayfield's commendable (hypothetical) preparedness to assist if he had been needed. Since Boral did not "directly or by [its] servants or agents" carry out work or engage in activities except supplying scaffolding and engaging Pyramid to erect and Zahner to dismantle the scaffolding, it did not come under any material obligation under the regulations. Contrast Maggiotto Building Concepts Pty Ltd v Gordon [2000] NSWCA 2001. 32 The trial judge held that neither Andreas nor Boral had any "obligation to observe the Regulations", and that that obligation rested only on Zahner. His Honour's view, which was correct insofar as it related to the actual work of dismantling the scaffolding, also involved an implicit rejection of any obligation on Andreas to provide Zahner with suitable and safe scaffolding which conformed to the regulations for the purpose of dismantling it. His Honour said: "I am satisfied the scaffolding was properly erected by [Pyramid]. The fact is that [Zahner] observed and understood that there were no ties and no bracing. He was not in the business of only dismantling safe or complete scaffolding. He was in a position to rectify whatever deficiencies existed, to restore the bracing if need be or to apply outriggers if he thought, in the exercise of his professional skill, that these steps were necessary for his own safety or the safety of others. Indeed it seems to me that he was under an obligation to comply with the regulations because his organisation and he personally were the ones undertaking the building work under the Act." 33 However, Andreas was the head contractor for the entire building. Except for work and activities which it sub-contracted to others, including Boral, it carried out all work and activities involved in the construction of the building "directly or by [its] servants or agents". By its site foreman Bell, Andreas had overall supervision of the work carried out and activities engaged in on the site, including responsibility for co-ordinating all work, arranging for scaffolding (and other sub-contractors) and ensuring site safety. Mr Bell was aware that workers from time to time removed "bits" from the scaffolding. 34 Andreas' obligations under clauses 6(1)(a) and 73(1) of the regulations related only to the safe performance of the work which it carried out and the activities it engaged in, not the work it sub-contracted. Clause 6(1)(a) required compliance with the regulations only "in regard [to]" work carried out by Andreas, and the phrase "such construction work" in clause 73(1) refers back only to construction work which Andreas carried out. Notwithstanding the breadth of some of the observations in Maggiotto Building Concepts Pty Ltd v Gordon [2001] NSWCA 65, in which there are superficial similarities but also significant differences in the facts, I doubt whether clauses 6(1)(a) and 73 assist Zahner. However, that need not be finally decided. 35 It was Andreas which maintained the scaffolding after it was erected at the place where it was located when Zahner commenced to dismantle it. That is so whether the word "maintain" in clause 6(1)(b) in the regulations is used in the sense of "retain in existence" (which was adopted in relation to clause 73(4) in Doval v Anka Builders Pty Limited (1992) 28 NSWLR 1) or in the sense of "preserve in good order". On either view, clause 6(1)(b) of the regulations obliged Andreas, as the "person [which] directly or by [its] servants or agents" maintained scaffolding, "to comply with the provisions of [the] Regulations in regard thereto", including clauses 73(1) and 86(11), if not clause 87. Because of the missing ledger, the scaffolding maintained by Andreas which Zahner was engaged to dismantle did not comply with the regulations and was unsuitable and unsafe. 36 Andreas' breach of the regulations was causative of Zahner's injuries, and he is entitled to succeed in his claim for damages for breach of statutory duty against Andreas. 37 In the circumstances, it is unnecessary to consider Zahner's negligence claim against Andreas. If it succeeded and (as seems clear) he was contributorily negligent, his negligence claim would entitle him to less than the damages he is entitled to for Andreas' breach of statutory duty, which by s 7 of the Law Reform (Miscellaneous Provisions) Act 1965 is not affected by Part 3 of that Act. 38 Zahner's negligence claim against Boral was based on the proposition that it owed him a duty of care, similar if not identical to the duty that it would have owed to an employee instructed to dismantle the scaffolding, to ensure that the scaffolding was safe for that purpose. 39 The trial judge accepted Boral "was under some duty" to Zahner, "for example a duty not to send him deliberately into a situation of danger known to it but unknown and unknowable to him". Although sometimes seeming to dispute that it owed Zahner any duty of care, Boral appeared to accept the trial judge's approach, which it described in its written submissions as "impeccable". Its final position was that, in the circumstances, its duty to Zahner did not oblige it to ensure that the scaffolding was safe for dismantling. 40 The trial judge noted Zahner's concession "that he examined the scaffolding and was aware of the risk, common in the industry, that the scaffold may have been altered by the tradesmen using it to facilitate their own endeavours. Importantly he agreed that he knew it was 'most essential and critical that as the scaffolder contracted to dismantle the scaffold, [he] had to be extremely careful to inspect it to ensure that it had not been modified by pieces having been taken out and not replaced'." On Zahner's case in this Court, the absence of any reference by Boral to the risk which Zahner knew existed was irrelevant. A warning of the risk was not necessary and would not have been sufficient. According to Zahner, Boral's duty was to ensure that the scaffolding was safe for dismantling. 41 However, the steps necessary to make the scaffolding safe for dismantling were part of the task for which Boral engaged Zahner. Both parties knew that the scaffolding might be unsafe, Boral lacked knowledge that the scaffolding was unsafe and the dismantling was a routine task for a skilled and experienced scaffolder such as Zahner. Boral was not obliged to employ or engage one scaffolder to make the scaffolding safe for another scaffolder, Zahner, to dismantle. 42 In summary, Zahner's appeal against Boral should be dismissed with costs but his appeal against Andreas should be allowed with costs, the judgment in favour of Andreas against Zahner should be set aside and judgment should be entered for Zahner against Andreas for damages and costs. 43 I agree with Grove J that, for the reasons given by his Honour, the amount to which Zahner is entitled for damages and interest is $271,149.70. 44 GROVE J: I agree with the orders proposed by Fitzgerald AJA and with his Honour's reasons in relation to liability. 45 The trial judge assessed Zahner's damages at $228,149.70 and calculated interest at $14,000.00. Zahner submitted that the amount assessed for general damages was manifestly inadequate and should have been $135,000, not $75,000, with an adjustment for additional interest, and that future medical expenses should have been assessed at $15000, not $2000, which included "… no allowance for the possibility or likelihood of future medical treatment, pharmaceuticals, surgery and associated expenses." 46 Zahner did not dispute the trial judge's findings in relation to damages, which were as follows: "The plaintiff was born on 25 June 1950 so that he was 29 at the time of the accident and is 49 now. During the 1960's he undertook a 12-month course to become a ticketed scaffolder and in 1968 he obtained a Class 1 scaffolding certificate becoming a leading hand at about that time. In 1974 he completed a Class 1 rigger's course and qualified as a dockman. He was, as I have already observed an expert diver and at the time of the accident he was conducting a business of scaffolding and salvage. At the time of the fall he sustained a posterior dislocation of the bones of his right forearm, a fracture of the right inferior pubic ramus, a comminuted fracture of the right calcaneum and fractures of the right scaphoid and lateral tibial plateau. He was off work completely until 22 April 1980. Having regard to the seriousness of his injuries his return even in a limited capacity at such an early date is commendable. The plaintiff claims complete wage loss equivalent of the average net weekly wage for those 11 weeks and this is calculated in an amount of $3,135. In truth the plaintiff continued to conduct his business in which he employed Messrs Skelly and Jesse. It is impossible on the evidence to tease out his precise actual loss for this time. Likewise the period between his resumption of activity as an independent contractor in April and his commencement as an employee of Boral in November 1981 defies calculation in respect of any economic loss. It is noted that in respect of this period the plaintiff makes no claim. Between 16 November 1981 and 19 June 1987 the plaintiff was employed by Boral as a scaffolder and during this time he performed the full range of activities required of a scaffolder although he claims that he exhibited a limp at all times and was less steady and less confident working at heights. He makes no claim for economic loss in respect of this period. In 1987 the plaintiff resigned from Boral, moved to the South Coast of New South Wales and took on work initially as a carpenter and later as a contract layer of concrete blocks. The plaintiff's evidence is that he resigned from Boral because he had come 'to the end of his tether' and could no longer stand the continuing pain and disability resulting from the accident. I am prepared to accept that the plaintiff's continuing discomfort and disability was a factor in his decision to resign but it was not, in my view, the sole or even the major reason for his decision. For some years prior to October 1984 the plaintiff had owned and resided in premises at 8 Elgata Close, Bradbury. In October 1984 he leased this property and went to live with his then companion, Ms Sandra Tittle. From time to time he resided also with his mother and in about 1986 Ms Tittle moved to the South Coast, Sanctuary Point. The plaintiff went on weekends and stayed with Ms Tittle while he continued to work for Boral but ultimately he resigned and went to live full time at Sanctuary Point. Clearly part of his motivation for resigning from the employ of Boral would have been his desire to avoid commuting and his desire to take up full time cohabitation with Ms Tittle. Thereafter whilst at the South Coast the plaintiff worked as a carpenter and his income was certainly less than he would have enjoyed had he remained in the employ of Boral. During this time he built a house and then took up the concrete block laying job. This job requires him to handle 25 kilogram blocks of concrete and whilst he says that this is done mainly on a level surface such as a concrete slab it requires him to move around construction sites and to exercise the considerable strength and dexterity required to lay these blocks. Dr Searle who expressed a very guarded assessment of the plaintiff's capacities and a rather gloomier prognosis than is reflected in the opinions of other doctors was nonetheless not aware that the plaintiff had engaged in this concrete block laying work for now nine years or more. Some reflection is cast upon Dr Searle's opinion because of his incomplete knowledge of the capacity actually being displayed by the plaintiff but by and large there is not a great deal of dispute amongst the orthopaedic specialists concerning the level of the plaintiff's physical disabilities. For example Dr Barry in 1986 and 1987 assessed the plaintiff as having 30 per cent loss of function of the right arm and 30 per cent loss of his right leg below the knee. These are the same percentages cited by Dr Searle following his examination in 1997. Curiously the only orthopaedic specialist who has examined the plaintiff at widely spaced intervals is Dr Pillemer whose first examination was in 1989 and who re-examined the plaintiff in 1997. From an initial estimate of 30 per cent loss of the right arm he expressed the view that the plaintiff had improved somewhat so that his percentage disability was only 20 per cent on the occasion of the latter examination. I confess I regard this as a surprising development having regard to the natural deterioration which affects the human body particularly that which has been injured. Overall I would accept that the plaintiff has suffered the very significant disability of some 30 per cent loss of his right arm and right leg. He also had problems in both shoulders and in both knees. The shoulder problems have been present from the beginning although they were regarded by Dr Pillemer in 1997 as not requiring any further intervention. Indeed that is the view expressed by Drs Brian and Harvey and no mention is made of the need for any likely operative intervention with the shoulders by any of the other doctors who have examined the plaintiff over the years, including Drs Kendall and Croser. Indeed the suggestion of shoulder arthroscopy was first made by Dr Pillemer in 1989 but following his examination in 1997 I gather that his opinion is that it is not really indicated. I would accordingly make no allowance for the cost of this procedure in the future. As to the right foot and ankle however it is clear that the fractures which were originally occasioned to the plaintiff have involved the ankle joint and the prospect of an arthrodesis was raised by Dr Pillemer in 1989. This prospect was again mentioned by Dr Ehrlich in 1990 and Dr Searle now regards it as 'probable' that the plaintiff will come to such an operation in about 10 years time. The plaintiff complains that his knees are of particular concern to him and indeed were the trigger for an attempt at suicide which he described to Dr Milton. Involvement of his left knee is posited upon the fracture of the tibial plateau at the time of the accident. It is accordingly acceptable that there should be some continuing sequelae as a result of this joint. The origin of the symptoms in the right knee is less easily explained although a fall of eight metres involving, as it did, fractures of the right foot would be likely to have some effect on the knee joint on that side as well. The plaintiff has had, however, at least one other injury to his knee but I would accept that overall the plaintiff is limited in his capacity to work at heights and on rough terrain largely because of the fracture of the calcaneum and partly because of ongoing problems with his knees attributable to this accident. It is noted that the plaintiff has not sought treatment (with one exception) for any of his injuries since last seeing his treating orthopaedic surgeon Dr Bhattacharyya in 1982. The one exception was that he contacted one doctor at Nowra Fair on one occasion in relation to his knee(s). As well, I accept the evidence of Dr Milton that the plaintiff has suffered and continues to suffer from a depressive reaction to the accident and his consequent loss of bodily well being. Whilst Dr Milton did not regard this chronic depression as being of a severity where it was itself incapacitating nonetheless it is an element added to the plaintiff's undoubted physical disability which decreases the employment opportunities available to him. The plaintiff has done well to continue at the level of activity demonstrated thus far and it is likely that his determination will continue to see him perform at this level. He has obtained further qualifications, he has designed half a dozen houses or more. He has obviously assisted in the building of a number but he is still significantly disadvantaged. Having found, as I indicated earlier, that his injuries were not however the sole or even the main reason for him leaving the employ of Boral I do not propose to award him the wage loss calculated on his behalf by Mr Morrison SC. I think the appropriate course is to provide a buffer in respect of lost capacity and opportunity in the past and to adopt a similar approach in respect of the future. I would not, however, allow any loss of superannuation in the circumstances. The figure I would propose in respect of the past is $50,000 and in the future $100,000 which sum is designed to include any time totally off work as a result of the arthrodesis occurring some time in the reasonable remote future. As for general damage I observe that the plaintiff has now for 20 years suffered a level of discomfort and pain which will not appreciably diminish in the future. Indeed the prospect is for his condition to slowly deteriorate although the rate of deterioration to date has not been particularly marked. He was a man who treasured his physical well being and was committed to a number of vigorous activities which have since been denied him. His reactive depression manifesting itself in excessive alcohol consumption and ultimately the attempt at suicide are clear indicators of the extent to which his lifestyle has been (and continues to be) significantly affected. I would allow general damage in the sum of $75,000 apportioned as to $35,000 for the past and $40,000 for the future. On the past I would allow interest at the rate of 2 per cent per annum for 20 years, namely $14,000." 47 Zahner's argument in relation to damages is set out in the following pars [45] to [51] of his written submissions, which were not significantly expanded in oral argument: "DAMAGES 45 As to damages only two aspects are challenged. His Honour allowed $75,000.00 for general damages. It is submitted that this is appellably low. 46 His Honour wholly accepted the appellant on quantum issues. The appellant was 29 at date of accident and was 49 at date of hearing. (J73D) He suffered severe orthopaedic injuries and his Honour regarded his return to work even in a limited capacity at an early date as commendable. (J73M) 47 His Honour noted that there was not a great deal of dispute amongst the orthopaedic specialists concerning the level of physical disability being substantial loss of function of the right arm and of the right leg below the knee. (J75P) His Honour accepted that the plaintiff had suffered a 30% loss of his right arm and right leg and also had problems in both shoulders and both knees. (J76D) He thought it unlikely that the plaintiff would come to shoulder arthroscopy but it was probable the plaintiff would come to an arthrodesis in the ankle joint. (J76P) His Honour accepted that there were significant knee problems (J76W) consequent upon the fall of 8 metres. His Honour accepted that the plaintiff had significant restrictions in work. 48 In addition, his Honour accepted psychiatric evidence from Dr Milton that the plaintiff had and continued to suffer from a depressive reaction to the accident. 49 His Honour's conclusion is set out at J78L. '… the plaintiff has now for 20 years suffered levels of discomfort and pain which will not appreciably diminish in the future. Indeed the prospect is for his condition to slowly deteriorate although the rate of deterioration to date has not been particularly marked. He was a man who treasured his physical well-being and was committed to a number of vigorous activities which have since been denied him. His reactive depression manifesting itself in excessive alcohol consumption and ultimately the attempt at suicide are clear indicators of the extent to which is lifestyle has been (and continues to be) significantly affected. I would allow general damages in the sum of $75,000.00 apportioned as to $35,000.00 for the past and $40,000.00 for the future.' 50 It is submitted that both for the past and for the future his Honour's allowance for general damages given his own findings is manifestly inadequate. 51 In addition to these matters his Honour, it is submitted, made inadequate allowance for future out-of-pocket expenses. He allowed only for a future arthrodesis in the sum of $2,000.00. Whilst it was true that the plaintiff had had little medical treatment (J77K) it was appropriate, it is submitted, to allow for more than merely the arthrodesis simplicitor. Presumably the appellant would have attended upon GPs and specialists prior to the arthrodesis and would be likely to be supervised and perhaps undergo physiotherapy and require medication subsequently. The possibility of shoulder arthroscopy, although rendered unlikely by his Honour's findings at J76K, should also have been considered on a Malec v J.C. Hutton Pty Ltd (1969) 169 CLR 638 basis. Dr Roger Pillemer in his report of 12 August 1999 whilst expressing the opinion that the appellant when seen in March 1997 did not require an arthroscopy of the shoulder nevertheless indicated that an arthroscopy may be considered if symptomatology increased (Plaintiff's Medical Reports Exhibit C). Moreover, the appellant needed, on the unchallenged medical evidence, psychiatric treatment. Allowance should have been made for the possibility that he would accept advice in the future and undergo such treatment. His other physical injuries were likely, on his Honour's own findings, to lead to increasing disability and the likelihood of other medical attendances. It is submitted that his Honour's allowance for future out-of-pockets was accordingly clearly inadequate and should lead to the intervention of this Court." 48 Since Andreas did not appear at the hearing in this Court, it is convenient to note Boral's submissions on damages. Paragraphs [23] to [29] of its written submissions were as follows: "Ground of Appeal 10 – General damages manifestly inadequate 23 His Honour made an assessment of the likelihood of a shoulder operation on the totality of the medical evidence. He concluded in effect that no such operative treatment would be needed. Evaluative assessments of that character must necessarily be influenced by his Honour's assessment of the man – this Court cannot interfere. 24 The only psychiatric evidence is a report of Dr Rod Milton in 1990. 25 Zahner worked from 1981 to 1987 as a scaffolder. 26 Thereafter, he worked on the South Coast as a block layer – heavy work, albeit (on his evidence) not full-time. He physically built his own home, with some assistance. 27 The advantage his Honour had in seeing Zahner over many days must be given considerable weight. Whatever words appear in the transcript, his Honour's assessment of the man can never be recaptured by this Court. 28 The allowance of interest on $35,000 for 20 years is to be considered in determining whether or not the award of general damages is manifestly inadequate. 29 It cannot be demonstrated that the award of $75,000, in the circumstances, is outside the range of proper exercise of discretion." 49 These paragraphs were supplemented by a brief oral argument by Boral's counsel in the following terms: "Can I deal with the damages issues to get them out of the way? The future out of pocket expenses were allowed by his Honour with the further comment (arthrodesis) $2,000 see p 79 of the judgment. That plainly has built into it an acceptance by his Honour that 20 years after the event the prospects of him coming to an operation by reason of the accident must be significantly discounted. It is to be judged against the fact that the proved out of pocket expenses over 20 years were see p 79 1 D $1,149.70. So his Honour has allowed for the future something like almost twice as much as that which had been demonstrated as necessary over the past 20 years. It can't be said to be unreasonable we would submit. So far as general damages is concerned the O'Crikie(?) principle seems to be the only basis upon which an argument is put. His Honour saw the plaintiff over many days, there must be a significant component in his Honour's assessment being his judgment of the man and the extent to which he has suffered and is likely to suffer. As we say in our written submissions, you should take into account the fact that, notwithstanding that his damages given in the dollars of the year of judgment, I won't surprise Mr Justice Grove, you must take into account the fact that whilst they're today dollars there is effectively a four per cent interest component running over 20 years, it's reduced by half to take account of the fact that it's an accruing – but it's not $75,000, it's $75,000 plus I think about $14,000 in interest, that is part of the damages. That is to put him in the same position as if the dollars had been given to him back in 1980, it is part of the general damages. It, of itself, $75,000 doesn't offend one's sensibilities, it's not so outrageous as to be outside the range of a properly exercised discretion, it's not demonstrated to be, it's just an appeal to – that's not enough. But taking into account the interest of another $14,000 odd, it's not $75,000, it's nearly $90,000. This is a man who went back to work of course as a scaffolder for seven or eight years before he went to the South Coast. This is a man who built with his own hands, and the assistance of others, the mud brick house on the South Coast. It is far from someone who is a cripple. His Honour had the opportunity of looking at the plaintiff over a long period of time, you can never hope to get to that position, we don't want to say anything more about damages than that." 50 The aspects of damages challenged are limited to general damages and the award for future treatment. 51 In any analysis of the assessment of general damages it is to be borne in mind that the award of interest is compensating in character, however it is not compensation for damage done but an essential element in the achievement of true compensation for that damage, that is restoring a plaintiff insofar as money can to the situation in which he or she would have been but for a defendant's negligence. Haines v Bendall (1991) 172 CLR 60 at 66. It is appropriate in that fashion to contemplate the award of $75,000 with $14,000 interest. 52 In my opinion the assessment is, accepting the learned trial judge's comprehensive exposition of the relevant conditions and prognoses, inadequate to reflect the appellant's losses. I would substitute an award of $100,000 together with interest at 2 per cent per annum for twenty years upon $45,000 (a proportion representing loss to date) namely, $18,000. 53 His Honour is not demonstrated to have erred in estimating that the prospect of arthrodesis (in the ankle joint) would occur in "the reasonable (sic) remote future". Dr Searle had postulated ten years hence in 1990 but it had not become imminent by the time of trial in the latter half of 1999. Neither is error demonstrated in rejection of the claim for shoulder arthroscopy. His Honour was not bound to find that this was in fact a possibility and allow for contingency, indeed the evidence to which he referred showed that but one medical examiner had hypothesized a suggestion about such procedure from which suggestion he later resiled. 54 The award for future economic loss expressly allowed for time off work as a result of arthrodesis (if and when it is undertaken) and the evidence did not supply estimates of cost. Calculation of an element of award for cost of surgery was essentially left to intuition. Whilst I would have chosen a larger figure than that selected by his Honour, his selection has not been shown to be wrong, and intervention is not justified. 55 There should therefore be judgment for the appellant against Andreas for $271,149.70 made up of these ingredients: Out of pocket expenses $ 1,149.70 Past economic loss 50,000.00 Future economic loss 100,000.00 Future medical treatment 2,000.00 General damages 100,000.00 Interest 18,000.00 Total: 271,149.70 **************** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.