New South Wales Supreme Court CITATION : Jones v Dyldam Developments Pty Ltd & Anor [2007] NSWSC 754 HEARING DATE(S) : 25 June 2007; 26 June 2007; 27 June 2007; 28 June 2007; 29 June 2007 JUDGMENT DATE : 13 July 2007 JURISDICTION : Common Law JUDGMENT OF : Simpson J DECISION : 1. Verdict for the plaintiff against the first defendant; 2. Verdict for the plaintiff against the second defendant; 3. The parties are to bring in short minutes of orders to reflect the findings of fact and conclusions herein. CATCHWORDS : TORT – NEGLIGENCE – personal injury – duty of care – claim for damages – plaintiff injured in the course of employment as bricklayers' labourer – permanent incapacity – apportionment of liability between defendants - DAMAGES – as against the first defendant: non-economic loss – past out of pocket expenses – future out of pocket expenses – past wage loss – past loss of superannuation – future wage loss – future loss of superannuation – Fox v Wood – past domestic assistance – future domestic assistance - DAMAGES – as against the second defendant: past economic loss – future economic loss - PRACTICE AND PROCEDURE – medical evidence – duty of legal representatives – excessive material tendered – costs incurred not to be recoverable Civil Liability Act 2002 LEGISLATION CITED : Law Reform (Miscellaneous Provisions) Act 1946 Workers Compensation Act 1987 Workplace Injury Management and Workers Compensation Act 1998 BP Australia Pty Ltd v Tarren [2006] NSWCA 305 Forstaff Blacktown Pty Ltd v Brimac Pty Ltd [2005] NSWCA 423; (2005) Aust Torts Reports 81-814 CASES CITED : Heuston v Yore Contractors Pty Ltd, unreported, 9 March 1992 Macarthur Districts Motor Cycle Sportsmen Inc v Ardizzone [2004] NSWCA 145 Maricic v Dalma Formwork (Australia) Pty Ltd [2006] NSWCA 174 Penrith City Council v Parks [2004] NSWCA 201 Warren Jones (Plaintiff) PARTIES : Dyldam Developments Pty Ltd (First Defendant) Samorto 13 Pty Ltd (in liq) (previously known as Sydney Bricklaying Construction Pty Ltd) (Second Defendant) FILE NUMBER(S) : SC 20355 of 2006 A Lidden SC/J de Greenlaw (Plaintiff) COUNSEL : J Graves SC (First Defendant) M J Jenkins (Second Defendant) Bale Boshev (Plaintiff) SOLICITORS : Hicksons (First Defendant) Home Wilkinson Lowry (Second Defendant) IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION PROGRESSIVE LIST Simpson J 13 July 2007 20355/06 Warren Jones v Dyldam Developments Pty Ltd & Anor JUDGMENT 1 HER HONOUR: By statement of claim originally filed in the District Court on 3 February 2006 the plaintiff claims damages for personal injury he alleges he suffered in 2003 when employed by the second defendant (then known as Sydney Bricklaying Construction Pty Ltd, which was referred to in the evidence as "Sydney Bricklaying", terminology I will adopt) on a building site occupied and controlled by the first defendant (to which I will refer as "Dyldam"). The precise date of the events said to give rise to the plaintiff's claim is a matter of some contention, which I will discuss below. The plaintiff pleaded that they occurred on 20 February 2003. 2 The plaintiff claims that his injury was caused by negligence and/or breach of statutory duty on the part of either or both of the defendants. Each defendant has filed a defence, denying the allegations of breach of duty (whether statutory or at common law). Neither has alleged contributory negligence on the part of the plaintiff. Each has filed a cross-claim against the other, claiming, under s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946, contribution or indemnity in respect of any liability found to exist against it. 3 The plaintiff's claim against Sydney Bricklaying is governed by the provisions of the Workplace Injury Management and Workers Compensation Act 1998 ("the Workplace Injury Management Act"), and the Workers Compensation Act 1987. His claim against Dyldam is governed by the provisions of the Civil Liability Act 2002. LIABILITY 4 Much of the evidence is uncontroversial. In 2003 Dyldam was a developer engaged in the construction of a block of residential units at 12-14 Conie Avenue, Baulkham Hills. Sydney Bricklaying contracted to provide bricklaying services to Dyldam. In order to do so Sydney Bricklaying employed bricklayers and bricklayers' labourers. The plaintiff was employed by Sydney Bricklaying as a bricklayers' labourer. The work was heavy. His tasks included making a mortar mix of sand, cement and water (commonly called "mud"), and delivering it, in a wheelbarrow, to bricklayers. Because the bricklayers were remunerated according to the quantity of bricks laid, they imposed considerable pressure on the labourers to maintain the supply of mixed mortar to them. 5 By February 2003 the project was nearing completion. However, the terrain over which the plaintiff had to transport the mortar in the wheelbarrow was uneven and littered with "stuff" (the plaintiff's word). There was sand, crushed concrete, steel and bits of timber. There were puddles of water. The cement mixer in which the mortar was made was located some distance from where the bricklayers were working – on the plaintiff's evidence, between 100 and 150 metres. Mr Trevor Chia, who was then a leading hand employed to work on both this site, and another Dyldam development nearby, said that the distance to be travelled by the bricklayers' labourers would have been not more than 40 to 50 metres. In this respect I prefer the evidence of the plaintiff. Apart from the favourable impression I formed of his honesty (a matter with which I deal below), it seems to me far more likely that he would have a clear picture and recollection of the nature of the work he was doing; this was his daily routine. For Mr Chia, on the other hand, the bricklaying was only one aspect of his job, which encompassed not only the work of a number of trades on the site, but also a second, separate, development. 6 The plaintiff suggested to Mr Orazio Grasso, the principal of Sydney Bricklaying, that the cement mixer might be moved closer to where the work was being done, but this suggestion was rejected. 7 On the day in question the plaintiff transported, without incident, two barrow loads of mortar to the bricklayers. He was in the process of transporting a third load when an incident occurred that caused him to fall to the ground, still holding, and attempting to save, the contents of the wheelbarrow. He sustained a spinal fracture (at L3 and L5/S1), with consequent permanent injury to his back which, it is not in dispute, is extremely disabling. It will be necessary in due course to make more mention of the nature of his present condition. On 11 March 2004 he underwent major spinal surgery. 8 There are two principal areas as to which there is a lack of consensus among the parties. The first of these concerns the precise circumstances in which the plaintiff suffered his injuries. The plaintiff pleaded, and gave evidence, that his fall had been caused because the ground over which he was travelling had been "churned up" by the use of a bobcat. The second area of no consensus concerns the date of that event. I have characterised these issues as being issues as to which there is a lack of consensus, rather than as being in dispute, because neither of the defendants sought to advance a positive case to the contrary of what the plaintiff alleged and described; nor, indeed, in any substantial way, to contradict his account of those events. At the commencement of the proceedings I called upon counsel for each defendant to identify the issues, factual and legal, for determination. Each used the phrase "put the plaintiff to proof" in response. Senior counsel who appeared for Dyldam, as I understand it, identified essentially a medical issue of causation – by reference to medical opinion as to the plaintiff's condition in early April 2003, and whether any incident of 20 February of that year could have been its cause. Later, senior counsel added an issue concerning pre-existing degenerative changes in the plaintiff's spine. Senior counsel also flagged a question arising from one of the facts pleaded by the plaintiff: that was, that the ground surface on which the plaintiff was required to work had been "churned up" by the use of a bobcat on the site. Counsel for Sydney Bricklaying adopted a similar approach. 9 Notwithstanding this, the plaintiff was extensively cross-examined, particularly on behalf of Dyldam. Eventually, it was put to him that no incident of the kind he described had occurred, and that an account he had given to a general practitioner on 20 February (see below) was "pure fiction". Submissions were made that I should not accept the plaintiff's evidence. It was squarely put to me that he lacked credibility and that he could be seen to have tailored his answers to fit the circumstances as he perceived them at the time of cross-examination. This is, therefore, a convenient point to record that I found the plaintiff to be a completely honest witness, quite without guile, and lacking the intellectual sophistication to engage in the kind of manipulation of his evidence that was attributed to him. That is not to say that everything the plaintiff said was factually accurate; there were some aspects of his evidence, generally unimportant ones, on which he was, or may have been, mistaken. However I attribute these errors to faulty recollection, limited intellectual capacity possibly affected by the serious injury he has suffered, the pain he continues to suffer, and medication which he is now required to take. By way of illustration, the plaintiff, in his evidence, said that the construction was of a development of about 600 residential units; a record from the Baulkham Hills Shire Council concerning the Development Application shows that the proposal was for a complex containing 53 units. While I acknowledge the magnitude of this discrepancy, I regard it as of no significance whatever. The plaintiff's prospects of success in his claim in no way depend upon the size of the development and there was no possible advantage to the plaintiff in exaggerating it. I accept that, in some instances, his reliability is questionable. I reject the attack upon his credibility. In particular, I accept that an incident occurred in which while pushing the wheelbarrow over disturbed ground, be fell and injured his back. 10 I now return to his account of the events in question. 11 The plaintiff has given, over the years, a number of accounts of what happened to him, and, incidentally, when it happened. I shall deal with these in chronological order. 12 On 20 February 2003 the plaintiff consulted a general practitioner, Dr Shobha Mihrshahi. Dr Mihrshahi's notes record (so far as I can translate them): A note in the margin reads: "pt [patient] says this is not w/c [workers compensation]" The note is completed with a reference to the treatment prescribed and investigations requested by Dr Mihrshahi. 13 On 6 March 2003 the plaintiff consulted another general practitioner, Dr Jean-Claude Huynh. Dr Huynh provided him with a medical certificate of unfitness for work for a month from 13 February. In a part of the document which provides for a record of how the injury occurred, Dr Huynh wrote: "Fell at work onto back when wheeling barrowed bricks." Dr Huynh recorded the date of the injury as 12 February 2003. 14 On 15 May 2003 the plaintiff submitted a Workers Compensation Claim Form to the Government Insurance Office ("GIO"). Although the form was signed by him, it was completed partly by him and partly by his wife, Ms Rachel Jones. This form, too, recorded the date of injury as 12 February 2003. In response to a question on the form requiring a description of how the injury occurred and what the plaintiff had been doing at the time, his wife wrote: "slipped on uneven footing when wheelbarrowing cement." By his signature the plaintiff certified that the information contained in the form was correct. He accepted (and I accept) that he was the only source of his wife's information in answering the question as she did. 15 On 27 May 2003 the plaintiff signed another document. This was a document prepared by an organisation known as "Workplace Injury Management Services" ("WIMS") which was, it seems, engaged in an attempt to rehabilitate the plaintiff. The form required insertion of "A history of injury as given by the injured worker" (italics added). 16 The representative of WIMS who completed the document wrote: "On the day I was injured I was required to travel … around the work site to supply bricks and mud to the bricklayers. I was asked to supply bricks + mud to some bricklayers working in pits. Which required walking over 200m around the worksite up inclines and down declines + on surfaces such as sand, concrete, mud and cush (sic - ? crushed) concrete. I was pushing a wheelbarrow full of cement over a decent (sic), the ground was uneven and my left or right foot hit either hole or a rock, and I felt a sharp pain in my lower back and I fell forward, still holding the wheelbarrow which jerked me further and I fell onto my back." By his signature to this document, the plaintiff certified that he believed that statement to be true and correct. On the same day the plaintiff signed another document prepared by WIMS, entitled "Initial return to work plan". The only present significance of this document is that it gives the date of injury as 1 February 2003. 17 On 30 May 2003 the plaintiff signed a further claim, for injury or sickness benefit from his own insurance company, AG Insurance. (This, it seems, was a policy held by the plaintiff to cover him for payments due on a motor vehicle subject to a lease in the event that disability prevented him from meeting the payments.) Again, the bulk of the document is not completed in the plaintiff's handwriting, but he signed a declaration that the information contained therein was "truthful, accurate and complete". 18 In this document it is asserted that, at the time of the injury, the plaintiff was pushing a wheelbarrow and that he: "… slipped on uneven footing." 19 On 1 March 2006, pursuant to the Workplace Injury Management Act (s 318(1)(d)) the plaintiff gave the following description how he suffered his injury: "20 From the first trip it became apparent it was going to be difficult to keep the required amount of mud up to the 2 bricklayers lining the pit. It was difficult to find a path for the wheelbarrow, over the uneven ground, up and down the inclines and over, through or around the building debris strewn on the ground and various other obstacles in the path from the mixer to the pit. The operator of the mixer, Dominic, always filled any wheelbarrow with as much mud as the wheelbarrow could take and during these trips the wheelbarrow was filled to the brim. I was able to complete 2 trips without incident, although it was difficult and tiring. 21 As I was walking back to the mixer from the pit a bobcat which had been working towards the front of the site up to that time began operating down the side of the site, and around the back of the building, closer to and past the pit. 22 On my third trip from the cement mixer to the pit, with the wheelbarrow filled to the brim with mud, after traversing about 150 metres, I had to walk down a decline. It was in this area that the bobcat had recently been working and the ground was now churned up. There was also building material, debris and other obstacles lying on the very uneven ground. Trying to find a path to the pit, particularly with the wheelbarrow so full, was difficult in view of the building material and debris strewn on the ground. During the course of this, whilst trying to push to the wheelbarrow past all these obstacles, one of my feet was caught in the uneven ground, created by the bobcat churning it up, and this caused me to lose my balance. I continued to hold onto the wheelbarrow but the weight was such that it eventually toppled over and some of the mud spilled out onto the ground." 20 In the statement of claim originally filed in the District Court (on 3 February 2006) the plaintiff pleaded (relevantly) as follows: "9. On 12 February 2003, the Plaintiff was required to carry out work, using a wheelbarrow to transport wet cement from one part of the building site to another part, at which the Plaintiff was to perform further works. 10. Whilst the Plaintiff was undertaking this work, the Plaintiff lost control of the wheelbarrow and as a result he suffered injury. 11. In addition and/or in the alternative, at the time the Plaintiff was carrying out such work, work was also being carried out in the same area by other persons, in particular, a bobcat drivers. … 15. During the course of the bobcat driver performing his work, he caused the ground over which he and the Plaintiff worked, to be churned. As a result of this the Plaintiff lost control of the wheelbarrow he was pushing and suffered injury …" 21 Although the plaintiff's pleading went through a number of incarnations, the substance of these allegations did not change. What did change, with the filing of a Second Further Amended Statement of Claim on 29 May 2007, was the date alleged. That document pleaded the date as 20 February 2003. That remains the plaintiff's primary allegation as to date. 22 In his evidence in chief the plaintiff gave a more detailed account of the events in question. He said that on the day of his accident two bobcats were working on the site. As recorded in the transcript, he said that bobcats tended to "turn (sic - ? churn) up the ground". The bobcats were filling a gap between the almost completed building and the ground with soil. He said that this: "… churned [the ground surface] up and made it quite a mess." The plaintiff said: "I had come off the concrete on to sand mixed with soil, the soil and then proceeded on to crushed concrete, past the crushed concrete, out on to the road or on to the nature strip and then just dirt and crushed concrete for the last driveway, so mainly sand, crushed concrete and dirt … The only flat surface was from the mixer to the end of the concrete once you begun past that." He then said: "From the driveway, proceeded down the driveway and there was a lot of ruts and holes but in the process of saying holes they weren't round holes, they were sort of L-shaped holes. You picture a driveway and a bob, what a bobcat driver does is digs into it and then lifts out (indicated). So there was humps and bumps and dips, craters, try to go past and avoid as many as I possible could. Pretty much at the end of the driveway got to the very bottom and I couldn't not (sic) avoid the last one. The wheelbarrow fell into that one. I went in with it and as we both went down I just felt a massive pain and just felt like I was getting crushed." 23 The plaintiff was extensively cross-examined on the variations discernible in his accounts of his injury given in the various documents extracted above. Attention was drawn, both in cross-examination and in subsequent address, to the description of the plaintiff's work as barrowing bricks (not mortar, cement or mud), and, particularly, to the absence in Dr Mihrshahi's note, of a fall, or indeed, any causative incident. Dr Mihrshahi's note merely records the onset of "terrible" back pain while pushing a barrow load of bricks. Likewise, the plaintiff was cross-examined at length concerning the date which he had given to various people of his injury. 24 There is, I accept, some mystery about the date. Dr Mihrshahi's record, taken together with the plaintiff's evidence that he attended her on the day of his injury, would support the present pleading that the injury occurred on 20 February 2003. However the note includes a reference to the plaintiff's inability to sleep on his back. This would not suggest that that attendance was on the day the injury was sustained. On the other hand, there is no earlier note in Dr Mihrshahi's records that would permit an inference that the injury occurred on an earlier date. 25 I am satisfied that this anomaly does not have to be resolved. The plaintiff's evidence was that he did not make any attempt to identify the date until asked to do so some time later. Then, his impression was that it had occurred during the first two weeks of February. It was only by a process of deduction on the part of the plaintiff's solicitors, principally by reference to Dr Mihrshahi's note, that the date of 20 February was fixed upon. But there is no dispute that the plaintiff worked on the site; it was never suggested to him that his description of the terrain was other than accurate; and it was common ground that, from time to time, bobcats worked on the site. 26 I am conscious, also, that Dyldam, especially, places considerable store on the date of 20 February. This is because of an opinion expressed by Dr Ronald Shnier, a radiologist who, in May 2007, reviewed various radiological examinations of the plaintiff, and concluded that a CT scan taken on 13 March provided evidence that the injury that it disclosed pre-dated 20 February, and was of closer to 5-6 weeks' maturity – that is, having occurred at the end of January or early February. But Dr Shnier was under the mistaken impression that the CT scan was taken only two, not three, weeks after the date on which he said he was injured. 27 The acknowledged fact is that the plaintiff never returned to work after the incident that caused his injury. In the ordinary course the date would be readily ascertainable by reference to wage records of his employer, Sydney Bricklaying. However, for some time after he ceased work, and until he made a claim for workers' compensation in May 2003, Sydney Bricklaying continued to pay him in the ordinary manner. And, in any event, Sydney Bricklaying has gone into liquidation and many of its records have been lost. Such records as do exist therefore do not clarify the position. 28 The plaintiff's credibility is not affected by the mystery surrounding the date of his injury. He has committed himself to the date of 20 February only on the basis of information supplied to him by his solicitors. He did not pretend to have any independent recollection that his injury occurred on that date. In my opinion the evidence concerning the date raised a false issue which need no longer be pursued. 29 On behalf of Dyldam one witness gave evidence. He was Trevor Chia, who, in early 2003 was employed by Dyldam as a leading hand. Mr Chia described the arrangements for organising work on the building site. However, it does not appear to me that, in any material respect, this evidence advances the issues with which I am presently concerned. It casts some light on the issues raised by the cross-claims. 30 Counsel for both defendants put submissions to the effect that I would not accept that the plaintiff's injury occurred as described by him. I have already outlined the basis on which that submission was put on behalf of Dyldam; the attack on behalf of Sydney Bricklaying was not significantly different. I reject both attacks. As I have stated, I found the plaintiff to be an honest witness and, while there were some inconsistencies, even in his oral evidence, I am comfortably satisfied that these arose because of faulty understanding of what he was being asked, or faulty recollection. In passing, I note (as will shortly become apparent) that it was common ground that the plaintiff's current medical condition is dire, that he experiences considerable and constant pain and discomfort, and that his physical condition has had a significant effect upon his emotional condition. The plaintiff was, at times, agitated; he frequently lost concentration, and he showed clear signs of not coping well with cross-examination or even examination in chief. That, however, was not because of any lack of integrity on his part. It was for the reasons I have given. His physical pain was readily observable, as was, frequently, his emotional pain. 31 Notwithstanding discrepancies, and notwithstanding a question mark as to when the injury occurred, I am quite satisfied that it occurred substantially as described by the plaintiff. 32 The negligence alleged against each defendant was particularised at great length and in great detail. 33 I am satisfied that the plaintiff has made out his case in negligence against each defendant. As against Dyldam, it is clear that the site on which the plaintiff was required to work was unsafe by reason of the ground surface. In this respect, I note Mr Chia's evidence that it was his practice to meet, on site, senior representatives of Sydney Bricklaying to map out the day's work; this included plotting access ways to locations where labourers or tradesmen had to work. He said that crushed concrete was used to produce a "safe walking area". But Mr Chia was not asked to, and did not, challenge the plaintiff's description of the general ground surface. And he did not suggest that labourers, such as the plaintiff, were routinely advised by Dyldam of what was agreed between the managers. It is not, in my opinion, of major consequence whether the particular disturbance in the terrain into which the plaintiff's wheelbarrow was caught was caused by a bobcat or by some other means. I interpolate that, on the balance of probabilities, I accept that it was so caused; but, even if there were some other cause, it was quite plain that the ground surface was uneven, was littered with rubble, crushed concrete, building materials and debris; it was, in places, wet, and was quite unsuitable for the use of a wheelbarrow, particularly one laden to the brim with wet concrete. 34 It follows that, so far as the plaintiff is concerned, Sydney Bricklaying was also in breach of its duty of care to provide the plaintiff with a safe place to work and with safe working conditions. Such a duty is, of course, non-delegable, and it was not suggested that Sydney Bricklaying had delegated this duty to Dyldam or anybody else. There was no evidence that Sydney Bricklaying had taken any steps to ensure that the plaintiff was provided with a safe working environment. There was no evidence that Sydney Bricklaying kept labourers, such as the plaintiff, informed of the agreed access ways. It is apposite to note that a director of Sydney Bricklaying was called, but gave no evidence capable of exculpating the plaintiff's employer. 35 No argument was addressed to the breaches of statutory duty alleged and it is unnecessary further to consider them. Subject to restrictions imposed by ss 151G and 151H of the Workers Compensation Act, the plaintiff is entitled to an award of damages against each defendant. 36 It will in due course be necessary, for the purposes of the cross-claims, and also for the purposes of s 151Z of the Workers Compensation Act, to determine the respective blameworthiness of the two defendants. DAMAGES 37 S 151H of the Workers Compensation Act precludes an award of damages under that Act unless the injury results (relevantly) in a degree of permanent impairment of the injured worker of at least 15 percent. The plaintiff amply meets this test. 38 With the exception of the matter raised by Dr Shnier, to which I have already referred, and to which I will return, there was no medical issue in the proceedings. Dyldam tendered one medical report, (that of Dr Shnier) which went primarily to the question of causation but peripherally to the date on which the injury was suffered. Sydney Bricklaying tendered no medical evidence. I was told, and it was common ground, that, while the plaintiff had been examined on behalf of, at least Dyldam, no reports other than that of Dr Shnier had been served. In opening, senior counsel for the plaintiff told me, without dissent from either defendant, that there was no medical issue for determination. 39 Notwithstanding this I was provided with a vast bulk of medical reports and other material. Initially this bundle contained, it seemed, every medical record relevant to the plaintiff's treatment, including for example, a complete photocopy of nursing notes from the plaintiff's hospitalisation for the purposes of his surgery, and technical reports of histology, pathology, x-rays and other documents that came into existence during the course of the plaintiff's treatment. When I indicated that I was not prepared to accept such voluminous material, which was plainly not relevant to any issue in the proceedings, the bundle was restructured. Even after restructuring, it ran to no less than 100 pages – this in a case in which there was, as I have said, virtually no medical issue. The bundle, that became Exhibit A, contained 13 reports of the orthopaedic and spinal surgeon who performed the surgery upon the plaintiff, principally progress reports to Dr Huynh, the plaintiff's general practitioner. These were quite unnecessary. The bundle also included a letter to a urologist who, at the request of the surgeon, reviewed the plaintiff. This letter did no more than thank the urologist, refer the plaintiff, and ask for review and ongoing advice. It, too, was a quite unnecessary document to be produced in these proceedings. There was a great deal more making up the 100 pages, most of it equally unhelpful. 40 I was, and remain, critical of the plaintiff's legal representatives for the manner in which the medical evidence was prepared and produced. No judgment has been exercised in the determination as to what was relevant or necessary to establish the plaintiff's claim for damages, or the extent of his disabilities. I made it clear that, unless the plaintiff's solicitors agreed, without an order, to take this course, I would order that there be no costs recovered against the plaintiff or either defendant in respect of this unnecessary photocopying expense. I was told that no such costs would be charged and therefore forbore to make such an order. I expect that the agreement will be honoured. The plaintiff is not to have the quantum of his damages reduced by the need to pay for unnecessary photocopying costs. The entire exercise discloses a lack of responsible application to the task of preparation of the plaintiff's claim. 41 I return now to distil, from that vast array of material, that which is relevant to the assessment of the plaintiff's damages. 42 The plaintiff was born on 21 September 1973, and was 29 years of age at the time of his injury. He is now 33 years of age. On 11 March 2004 he underwent spinal surgery conducted by Dr New, which Dr New described as "quite an extensive procedure". 43 Following this, on 17 November 2004, Dr Max Ellis, a WorkCover and Motor Accident Authority trained in assessment of permanent impairment, assessed his "overall whole person impairment" at 46 percent. On 30 April 2007, Dr Ellis assessed his "overall combined whole person impairment" at 64 percent. 44 The plaintiff also suffers a disturbance to his urological functioning (the symptoms of which were evident during the course of two days over which he gave oral evidence). He has undergone investigations for this but the symptoms continue. Dr Howard Lau, who has examined him and treated him in respect of this condition, considered it to be "relatively minor" but the symptoms "quite bothersome", requiring at least twice daily self-catheterisation. He has also suffered some erectile dysfunctions. 45 Finally, the plaintiff has been under the care of a psychiatrist, Dr Pace, since September 2003. On 6 May 2007 Dr Pace described his presentation as "irritable, argumentative and feeling hopeless". He said the plaintiff met the criteria for "severe major depressive disorder". On that occasion, he considered that the plaintiff had deteriorated further in his mental state, had been depressed for four years, and was likely to continue in that condition. He thought that the plaintiff would continue to require psychiatric care for some years into the future. His depressive illness affects his function on a daily basis; it interferes with his relationships with others and his self-perception. As to fitness for work, Dr Pace considered the plaintiff totally impaired and thought it very unlikely that he would ever return to work. 46 As a consequence of the plaintiff's injuries, and the sequelae in terms of his mental state and behaviour, his wife left the marriage. That this was the source of distress to the plaintiff was visibly demonstrated on the second day of the hearing. On resumption after the lunch adjournment the plaintiff was obviously distraught. He said this was because his (former) wife had arrived, that he had not seen her for some time, and that there had been "an emotional scene". It was necessary to allow the plaintiff (not for the first time) some time to compose himself. I am satisfied that the plaintiff is, indeed, in a very fragile emotional condition. Dr Pace makes it clear that this condition is not likely to improve. The second defendant: Workers Compensation Act 1987 47 There was no dispute that the plaintiff meets the threshold provided by s 151H of the Workers Compensation Act. He is, therefore, entitled to such damages against Sydney Bricklaying as s 151G permits him to recover. This is limited to damages for past economic loss due to loss of earnings and damages for future economic loss due to the deprivation or impairment of earning capacity. I am satisfied that the plaintiff is permanently and totally incapacitated for work, and is therefore entitled to an award of damages representing total destruction of his earning capacity. 48 The calculation, however, is not as simple as one might hope it would be. The plaintiff did not lodge an income tax return for the year ending 30 June 2003. The manner in which he was paid by Sydney Bricklaying was, it is fair to say, unorthodox. I here interpolate that, at one stage, an issue arose as to whether the plaintiff was, indeed, an employee of Sydney Bricklaying, or was engaged by it as an independent contractor. After some discussion, it was accepted on all sides that he is to be treated, for present purposes, as an employee. An application for leave further to amend the statement of claim to plead the alternative was ultimately withdrawn. However, he was not paid as an employee. Exhibit B is a document in the form of an invoice purporting to have been rendered by the plaintiff to Sydney Bricklaying for an unspecified number of days' labour, and charging an additional amount of 10 percent attributable to Goods and Services Tax. The plaintiff said that, on being paid by Sydney Bricklaying, he was (routinely) provided with a document such as this. 49 Mr Anthony Grasso, who gave evidence on behalf of Sydney Bricklaying, and was, in the relevant period, a director thereof, said that the plaintiff was paid as a sub-contractor and that that was how he (the plaintiff) chose to be paid. 50 The latter part of this evidence I do not accept. I am satisfied that the manner in which the plaintiff was paid by Sydney Bricklaying was some kind of device for the benefit of Sydney Bricklaying. Just what that benefit is it is unnecessary and probably impossible to determine. 51 The present significance of the absence of a 2003 income tax return is said to be that it is not known whether the plaintiff remitted the amount attributable to GST to the Australian Taxation Office. It is notable that, although he had the opportunity to do so, counsel for Sydney Bricklaying did not ask that simple question. This question arose in the context of competing contentions as to the manner of calculating the plaintiff's wage loss (see below). Wage loss 52 Alternative proposals were put on behalf of the plaintiff, and on behalf of Sydney Bricklaying as to the appropriate way of calculating the plaintiff's wage loss. Sydney Bricklaying relied upon evidence of its payments directly to the plaintiff's bank account over a period of 33 weeks prior to 20 February 2003. In that time, 26 payments of varying amounts were made, giving the plaintiff a total sum of $21,317. This is an average of $646 per week. There is no explanation of how these amounts were made up. Counsel for Sydney Bricklaying also referred to evidence of the plaintiff's earnings prior to his employment by Sydney Bricklaying. He put two alternatives, one on the assumption that the plaintiff remitted the GST amount to the ATO, the other on the assumption that he retained it. It was in this context that counsel argued that the amount should be reduced. This was because the "tax invoices" which the plaintiff was given when he was paid purported to show an amount referable to GST. Had the "tax invoices" been what they purported to be, it would have been the plaintiff's duty to remit that tax to the ATO. (That argument is based upon the premise that the invoices, denoting what Sydney Bricklaying in fact paid to the plaintiff, provide the appropriate foundation for the calculation.) In my opinion it is unlikely to the point of absurdity that the plaintiff did remit an amount attributed to GST to the ATO. I doubt that he had the slightest understanding of the manner in which he was paid or any obligations he might have had in respect of amounts of GST he received. As I have said above, he is unsophisticated and guileless. The alternative proposal put by counsel was calculated on the basis that the plaintiff did not remit the GST amount to the ATO, but did pay income tax on the amount he was paid. 53 Senior counsel for the plaintiff took a different approach. He pointed to evidence that, following his accident, Sydney Bricklaying continued to pay him until the workers' compensation claim was made whereupon its insurance company took over the payments, although these were made through Sydney Bricklaying. The plaintiff's bank statements show that, consistently from February 2003, weekly amounts of $935 were deposited in the name of Sydney Bricklaying to his account and identified as "wages". There is also the evidence of the workers' compensation claim form, to which I have already referred in another context. This shows a claim of a gross weekly wage rate of $931. No doubt it was on that basis that Sydney Bricklaying made the payments as it did. There is authority for the proposition that payment of workers' compensation by an insurer is admissible as an admission of incapacity against a defendant/employer in whose name the insurer defends common law proceedings: Heuston v Yore Contractors Pty Ltd, unreported, 9 March 1992, per David Hunt CJ at CL. There is no reason why the same principle should not apply to the determination of quantum of wages in respect of which the payments are made. This may be taken to be the plaintiff's base wage rate. 54 Certainly, Mr Grasso gave no evidence to contradict the proposition that this represented the appropriate level of payment for the plaintiff. In this respect I have not overlooked the circumstance, never fully explored in evidence or explained, that, on Sydney Bricklaying going into liquidation, its records were handed over to the liquidator and subsequently could not be found. 55 I accept the argument put on behalf of the plaintiff, that the most accurate estimate that can be made of the plaintiff's wage loss is to be made by reference to the figure that was in fact paid, and paid for at least some months after his injury. That is not the end of the calculations. The plaintiff's wife gave evidence that he worked most Saturdays. The amount, as overtime, which he was paid for then is not included in his basic wage rate. I also accept that, in order to calculate the plaintiff's correct wage loss, an amount ought to be included attributable to the overtime that he usually worked. Allowing only one-fifth of his weekly wage rate (and therefore not allowing for penalty rates) would add $187, giving a total of $1,122 gross per week. The plaintiff's wage loss will be calculated on this basis. 56 Other items claimable against the Sydney Bricklaying are limited by s 151G of the Workers Compensation Act and essentially flow from the findings I have made. It will be necessary for the parties to complete the final calculations. The first defendant: Civil Liability Act 2002 57 A different regime of calculation of damages applies to the claim against Dyldam. That is the regime provided by the Civil Liability Act. Against it the plaintiff claims damages under a variety of heads, identified in a schedule as: (i) non-economic loss; (ii) past out of pocket expenses; (iii) future out of pocket expenses; (iv) past wage loss; (v) past loss of superannuation; (vi) future wage loss; (vii) future loss of superannuation; (viii) Fox v Wood ; (ix) past domestic assistance; (x) future domestic assistance. It is necessary to consider only some of these, the others being either agreed or such as to follow from determinations already made. Subject to one matter with which I will deal below, the past and future wage loss is to be calculated on the basis of the same figures as the claim against Sydney Bricklaying. (i) non-economic loss 58 By s 16(1) of the Civil Liability Act no damages may be awarded for non-economic loss unless the severity of the non-economic loss is at least 15 percent of a most extreme case; by sub-s (2) the maximum that may be awarded (in respect of the most extreme case) is $427,000. Sub-s (3) prescribes a table, by which the damages calculated by reference to the proportion the plaintiff's case bears to a most extreme case are to be reduced, unless the severity of the injury suffered equates to 34 percent or more of a most extreme case. 59 I am quite satisfied, in terms of sub-s (1), that the plaintiff's case represents significantly more than 15 percent of a most extreme case. Sub-s (3) requires an assessment of what the proportion is. On behalf of the plaintiff a proportion of 65 percent was proposed. No argument contrary to this proposition was put on behalf of Dyldam; indeed, little was put on behalf of Dyldam on the question of damages. 60 I am of the view that 65 percent is a reasonable assessment of the severity of the plaintiff's injury. I propose to award damages for non-economic loss on that basis. It is therefore unnecessary to perform the exercise otherwise required by sub-s (3). (iii) future out of pocket expenses 61 I was provided with a schedule of what is said to be future out of pocket expenses. No argument against the figures contained therein was advanced. The figures are drawn from the medical evidence. I propose to allow the sum claimed. (vi) future wage loss 62 S 13 of the Civil Liability Act governs an award of damages in respect of future economic loss. It is in the following terms: " 13 Future economic loss—claimant's prospects and adjustments (1) A court cannot make an award of damages for future economic loss unless the claimant first satisfies the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant's most likely future circumstances but for the injury. (2) When a court determines the amount of any such award of damages for future economic loss it is required to adjust the amount of damages for future economic loss that would have been sustained on those assumptions by reference to the percentage possibility that the events might have occurred but for the injury. (3) If the court makes an award for future economic loss, it is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted." 63 No reference was made by either counsel to the provisions of s 13; nor was any attempt made to direct me to authority with respect to the construction of that section. This was notwithstanding the fact that, during the course of the proceedings, I repeatedly told counsel that I was dealing with legislation with which I was unfamiliar. I have already stated my view that the plaintiff is totally and permanently incapacitated for work. 64 S 13 poses real problems of construction. Its meaning has been described as "most obscure": Penrith City Council v Parks [2004] NSWCA 201 per Giles JA; see also the judgment of McClellan AJA in that case and Macarthur Districts Motor Cycle Sportsmen Inc v Ardizzone [2004] NSWCA 145. The general consensus appears to be that s 13 is a (somewhat ineffectual or at least opaque) attempt to give statutory formulation to the traditional practice of the courts of discounting sums otherwise awarded in respect of future economic loss by an amount (commonly, but not invariably, 15 percent) to represent "vicissitudes" or "contingencies": that is, the prospect that, even absent the injury the subject of the proceedings, the plaintiff would have suffered a comparable, but non-compensable loss of earning capacity. The amount of 15 percent could be increased or decreased according to the circumstances – in the case of a young man working in a particularly dangerous occupation, or who was already vulnerable to injury, the discount might be increased; in the case of an older person living a sedate life, it might be decreased. 65 In Macarthur Hodgson JA, with whom Stein AJA agreed, said: "In my opinion, having regard to the apparent purpose of the section, '"the events'" in s.13(2) must be those corresponding to the future economic situation of the plaintiff as it is understood to be resulting from the injury, not those corresponding to his future situation but for the injury …" 66 In Parks McClellan AJA took a different approach. His Honour considered that s 13(1) required an identification of the "most likely future circumstances" of a claimant. 67 In any event s 13(1) prescribes the first step which is necessary before making an award of damages for future economic loss. The plaintiff must satisfy the court that: "… the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant's most likely future circumstances but for the injury." "Assumptions" may, perhaps, not be the most apt word in the circumstances. Courts conventionally make awards of damages based on findings of fact. Where these findings of fact concern future events, or events that would or might, but for the circumstances the subject of proceedings, have occurred, they are necessarily uncertain; but they are, nevertheless, not speculative, and they are more than "assumptions"; they are findings of fact based upon the evidence. 68 The "assumptions" here are that the plaintiff would have continued in employment, either as a bricklayers' labourer, or in some comparable position, yielding comparable earnings. I am satisfied, in the terms of s 13(1) that those "assumptions" accord with his most likely future circumstances but for the injury. There was no basis in the evidence to conclude other than that the plaintiff would have continued to work, in unskilled positions, until normal retirement age. This work history ws sufficient evidence of that. The test prescribed by s 13(1) is therefore met. 69 Sub-s (2) then requires an assessment of the "percentage possibility" that "the events" might have occurred but for the injury. "The events" must mean the loss of capacity to engage in employment of that (or, in this case, any other) kind. 70 Sub-(3) then requires the court to state both "the assumptions" and the "percentage possibility" that that loss of earning capacity would have occurred even absent the injury the subject of the proceedings. I have already stated the assumptions – they are my findings of fact that, absent the injury, the plaintiff would have continued working to retirement (or pensionable) age in comparable employment. 71 I turn, then, to assess the "percentage possibility" that the plaintiff may have been rendered unemployable by some mechanism other than the injury the subject of these proceedings. That assessment involves a foray into unknown territory. However, the exercise is little different to the exercise that has conventionally been undertaken by courts awarding damages for future economic loss. The "conventional" 15 percent was based upon the accumulated experience and knowledge of judges dealing with cases of personal injury. It represents the known possibilities that individuals may suffer non-compensable injury or accident, or may, in other ways, have their earning capacity reduced or eliminated. 72 Here, the plaintiff was, before February 2003, a fit young man, able to discharge the heavy duties of his employment without apparent difficulty (other than some occasional muscle tiredness or soreness resulting from the nature of the work he was doing). There is no evidence that he engaged in any activities that would have exposed him to greater than normal danger or increased the risk that he would have lost the capacity to work. 73 Senior counsel who appeared for Dyldam argued for an "adverse vicissitudes contingency" reduction of as much as 50 percent. This was based upon the report of Dr Shnier. Dr Shnier said that there was: "… a long standing pre-existing degenerative intervertebral disc disease at L5/S1 … evidenced by the disc space narrowing." 74 He referred also to evidence that the plaintiff had sought medical advice in relation to back pain – which the plaintiff insisted, and I accept, was no more than muscle strain for the reasons I have already mentioned – and also called in aid a back injury suffered by the plaintiff in 1993 in a motor vehicle accident. The latter I discard completely – there was no evidence that the plaintiff continued to suffer any ill effects from that injury; there is evidence that he recovered, by way of damages, what seems to be a very small amount, indicative of a not very serious injury; and, finally, the plaintiff was able to engage in the very heavy work of a bricklayers' labourer. There was no evidence tendered to suggest that the degenerative condition would have precluded him from continuing to work in his occupation as a bricklayers' labourer or in some other unskilled work yielding comparable income. 75 Accordingly, I decline to increase what I consider to be a reasonable figure to allow for the vicissitudes, as now required by s 13; the amount allowed for future economic loss will be reduced by 15 percent for that purpose. 76 In the same context, but in a slightly vein, senior counsel referred to a well known text on the assessment of damages: Luntz: Assessment of Damages for Personal Injury and Death, 4th edition, at para 2.6.4, under the sub-heading "Consecutive Sufficient Causes". The passage upon which he relied reads: "It is now well established that where the effects of the defendant's wrong would have occurred in any event owing to a natural condition from which the plaintiff was already suffering, the defendant is not liable for those effects, ie causal responsibility is attributed to the natural condition and not to the wrongful act." 77 The principle may be accepted; but, given the state of the evidence in this case, it is irrelevant. There is no evidence that "the effects of [Dyldam's] wrong would have occurred in any event …". (ix) past domestic assistance 78 The plaintiff claims an allowance for past unpaid domestic assistance provided by his wife for 16 hours per week at $20 per hour over 3½ years (until October 2006, when the marriage ended). The rate of $20 was agreed but no concession was made as to the number of hours of assistance, which, it was said, had been provided to the plaintiff. The plaintiff gave some brief evidence about the assistance given to him by his wife. He said: "She had to take over pretty much all the male jobs which includes, like, the bins, mowing the lawns, doing the shop - like, I'd go shopping, but she would have to carry it all, put it in the car, take it out of the car. Pretty much everything." 79 His wife said that, from the time of the accident the plaintiff was in a lot of pain and was unable to undertake the tasks he previously he had. After the surgery he could not do very much at all, including dressing himself, or washing himself. He never was able to resume his pre-accident activities. 80 Particularly in the absence of any argument to the contrary, I accept that 16 hours is a modest estimate of the time and effort provided by the plaintiff's wife to his care up until the time she left the matrimonial home. 81 Damages for gratuitous attendant care services are governed by s 15 of the Civil Liability Act. Once again, neither counsel made reference to the section or made any submission as to the way in which this should be interpreted or applied. 82 By sub-s(2) no damages may be awarded to a claimant under this head unless the court is satisfied that there is (or was) a reasonable need for the services to be provided, the need has arisen (or arose) solely because of the injury to which the damages relate, and the services would not be (or would not have been) provided to the claimant but for the injury. 83 I am satisfied of each of those matters. 84 Sub-s (3) provides that no such damages may be awarded unless the services are provided for six hours or more per week, and for a period of six months or more. I am also satisfied of these matters. 85 Sub-s (4) and (5) prescribe amounts allowable. 86 It will be necessary for the parties to perform the calculations in accordance with those sub-sections. (x) future domestic assistance 87 A claim is made for $38 per hour for future domestic assistance, estimated at 24 hours per week for the remainder of the plaintiff's life. No argument was advanced to the contrary of this. The amount claimed will be allowed. APPORTIONMENT 88 Resolution of the cross-claims between the defendants requires apportionment of their respective liabilities. That apportionment is also made necessary by the provisions of s 151Z(2) of the Workers Compensation Act. Senior counsel for Dyldam argued for an apportionment of 60 percent to Sydney Bricklaying, and 40 percent to Dyldam. Counsel for Sydney Bricklaying initially suggested that Dyldam bore sole responsibility for what had occurred, but immediately conceded that this was an unrealistic position to adopt, but did not propose alternative figures. 89 It is, however, quite correct that Dyldam had overall responsibility for the control of the site. Most importantly, Dyldam was responsible for the employment of bobcat drivers and the operation of the bobcats. It is also true that Sydney Bricklaying had a responsibility to the plaintiff to ensure that the conditions in which he worked were safe. Further, the evidence (uncontradicted) is that the plaintiff suggested to the principal of Sydney Bricklaying that the cement mixers could be moved to a location closer to where the bricklayers were working, thus reducing the distance over which he had to transport the mortar. This was rejected, apparently without consideration. 90 Senior counsel for Dyldam relied upon the evidence of Mr Chia, in order to suggest that what occurred on this occasion was no more than an aberration. However, in my opinion, this misconstrues the effect of the evidence given by Mr Chia. Mr Chia, it is true, gave evidence about the coordination of the site, with daily meetings between Sydney Bricklaying and Dyldam; but this was, generally, in order to determine routes of travel for, inter alia, bricklayers' labourers. Mr Chia did not give any evidence about measures taken by Dyldam to ensure that the site was safe for individuals working thereon; nor did he have anything to say about the plaintiff's description of the ground surface. 91 In the circumstances of this case, I have come to the view that Dyldam bears 75 percent of the blame for the plaintiff's injury; Sydney Bricklaying 25 percent. 92 S 151Z of the Workers Compensation Act is a complex provision which provides for the reduction of damages that may be awarded in favour of a plaintiff where two tortfeasors (one an employer and one not an employer) are involved (whether or not the plaintiff takes proceedings against the non-employer). Dyldam claimed the benefit of the sub-section. Senior counsel for the plaintiff argued that it was not open to Dyldam to do so, because it had never pleaded the section. He relied upon the decision of the Court of Appeal in Maricic v Dalma Formwork (Australia) Pty Ltd [2006] NSWCA 174 and BP Australia Pty Ltd v Tarren [2006] NSWCA 305. The latter of these was a judgment delivered extempore by Ipp JA with whom Tobias and McColl JJA agreed. There Ipp JA said: "20 The judge did not make any such allowance [by applying s 151Z(2)]. The reason for this omission was that s 151Z(2) was not pleaded, was not argued and her Honour was not asked to make any allowance based on the section. 21 Forstaff Blacktown Pty Ltd v Brimac Pty Ltd [[2005] NSWCA 423] (2005) Aust Torts Reports 81-814 is authority for the proposition that a party should plead or otherwise make known to its opponent any reliance that it proposes to place on s 151Z(2). In my opinion, it is not appropriate on appeal to raise this section as a defence for the first time. Resolution of the issues raised by the section require factual findings to be made, factual findings relating to negligence, factual findings which are best determined (at least initially) by the trial judge." 93 In Forstaff McColl JA said: "92 It would, of course, be incumbent on a non-employer tortfeasor wishing to invoke s 151Z(2) to give the plaintiff worker notice of that intention. A cross-claim against the employer may be sufficient notice. That would, I would have thought, be the most usual course. If the non-employer tortfeasor chose not to pursue a cross-claim, it should plead its intention to invoke s 151Z(2)." I observe, in passing, that it is a curiosity of the decisions concerning s 151Z(2) that an onus is cast upon the plaintiff to prove the relevant facts; but, nevertheless, it is the defendant who is obliged to plead the section. 94 Forstaff may be distinguished from the present case in one material respect; because his injuries did not reach the 15 percent threshold then required by s 151H(1) of the Workers Compensation Act, the plaintiff in those proceedings did not sue his employer. The non-employer whom he did sue cross-claimed against the employer. 95 The difference is significant. The effect of McColl JA's decision in Forstaff was that the plaintiff bears the onus under s 151Z(2) – and yet it is the (non-employer) defendant who is obliged to plead, or bring to notice the intention to rely upon, a sub-section. That can have no practical application where the plaintiff himself has sued both the employer and the non-employer tortfeasors. In those circumstances, it seems to me, the section operates of its own force and is not required to be pleaded. In any event as is pointed out on behalf of senior counsel for Dyldam, he drew to attention at the commencement of the proceedings, the fact that s 151Z was material to the determinations to be made. 96 There is no reason why Dyldam ought not to have the benefit of the sub-section. It will be necessary for the parties to perform the calculations. 97 The orders I make are: (1) Verdict for the plaintiff against the first defendant; (2) Verdict for the plaintiff against the second defendant; (3) The parties are to bring in short minutes of orders to reflect the findings of fact and conclusions herein. ********** 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.