District Court New South Wales Medium Neutral Citation: Apthorpe v QBE Insurance (Australia) Limited & Ors [2019] NSWDC 135 Hearing dates: 25, 26, 27, 28 February and 14 March 2019 Date of orders: 18 April 2019 Decision date: 18 April 2019 Jurisdiction: Civil Before: Judge Levy SC Decision: Within 7 days of today's date the parties are required to bring in short minutes with draft orders that reflect the monetary effect of my findings in these reasons. Catchwords: TORTS – workplace injury on a domestic building site – plaintiff roofing labourer fell to ground from roof height after stepping on unsecured bridging planks between roof and a scaffolding platform – determination of liability of builder, scaffolder, fascia and guttering contractor and plaintiff's employer the tiling contractor – differing assessment schemes for employer's liability and occupier's liability; DAMAGES – assessment of claimed heads of damage – Workers Compensation Act 1987 and Civil Liability Act 2002 Legislation Cited: Civil Liability Act 2002 (NSW), s 3, s 5B, s 5D, s 5R, s 5S, s 16 Evidence Act 1995 (NSW), s 60, s 67 Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 5, s 6 Workers Compensation Act 1987 (NSW), s 151G, s 151Z Workplace Injury Management and Workers Compensation Act 1998 (NSW) Cases Cited: Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem (2009) 238 CLR 420; [2009] HCA 48 Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479; [1987] HCA 7 Bevillesta Pty Limited v Liberty International Insurance Co [2009] NSWCA 16 Caltex Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 258 Ceva Logistics (Australia) Pty Ltd v Redbro Investments Pty Ltd [2013] NSWCA 46 Condos v Clycut Pty Limited [2009] NSWCA 200 Czatyrko v Edith Cowan University (2005) 214 ALR 349; [2005] HCA 14 Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25 Fabre v Lui [2015] NSWCA 157 Fox v Wood (1981) 148 CLR 438; [1981] HCA 41 Graham v Baker (1961) 106 CLR 340; [1961] HCA 48 Hall v State of New South Wales [2014] NSWCA 154 Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18; [1956] HCA 42 Ilvariy Pty Ltd trading as Craftsman Homes v Sijuk [2011] NSWCA 12 Indigo Mist Pty Limited v Palmer [2012] NSWCA 239 Jones Lang LaSalle (NSW) Pty Ltd v Taouk [2012] NSWCA 342 Laresu Pty Ltd v Clark [2010] NSWCA 180 Leighton Contractors Pty Ltd v Fox (2009) 240 CLR 1; [2009] HCA 35 Medlin v State Government Insurance Commission (1995) 182 CLR 1; [1995] HCA 5 Miljus v Watpow Constructions Pty Ltd (2012) 82 NSWLR 572; [2012] NSWCA 96 Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254; [2000] HCA 61 Parkview Constructions Pty Ltd v Abrahim [2013] NSWCA 460 Penrith City Council v Parks [2004] NSWCA 201 Perisher Blue v Nair Smith [2015] NSWCA 90 Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529; [1985] HCA 34 Roads and Traffic Authority (NSW) v Dederer (2007) 234 CLR 330; [2007] HCA 42 Schellenberg v Tunnel Holdings Pty Ltd [2000] HCA 18; (2000) 200 CLR 121 Smith v Broken Hill Pty Co Ltd (1957) 97 CLR 337; [1957] HCA 34 State of New South Wales v Mikhael [2012] NSWCA 338 State of New South Wales v Moss (2000) 54 NSWLR 536; [2000] NSWCA 133 Stevens v Brodribb Sawmilling Company Pty Ltd (1986) 160 CLR 16; [1986] HCA 1 Strong v Woolworths Ltd (2012) 246 CLR 182; [2012] HCA 5 TNT Australia Pty Ltd v Christie [2003] NSWCA 47 Vairy v Wyong Shire Council (2005) 223 CLR 442; [2005] HCA 62 Wyong Shire Council v Shirt (1980) 146 CLR 40; [1980] HCA 12 Category: Principal judgment Parties: Kenneth Charles Apthorpe (Plaintiff) QBE Insurance (Australia) Limited (First defendant) HTE (Aust) Pty Limited (Second defendant) Christopher Wright (Third defendant) Burtwin Pty Ltd (Fourth defendant) Representation: Counsel: Mr G Petty SC with Mr P Kirby (Plaintiff) Mr S McCarthy (First defendant) Mr D Lloyd with Ms L Beange (Second defendant) Mr N Polin SC (Third defendant) Mr L Morgan (Fourth defendant) Solicitors: Slater & Gordon (Plaintiff) Sparke Helmore (First defendant) Clyde & Co (Second defendant) Hall & Wilcox (Third defendant) Moray & Agnew (Fourth defendant) File Number(s): 2011/301709 & 2014/281269 Publication restriction: None Judgment Table of Contents Nature of case [1] – [2] Scene of the plaintiff's fall [3] – [4] Parties [5] – [8] Causes of action pleaded [9] Issues [10] Documentary evidence [11] Witnesses who gave oral evidence [12] – [13] Credibility of testimony [14] – [41] The plaintiff [15] Mr Lavis [16] Inspector Hamilton [17] Mr Green [18] – [24] Mr Wright [25] – [34] Mr Nepia and Mr Lutelu [35] – [38] Mr JS Petty [39] Mr Burt [40] Mr Waddell [41] Factual background [42] – [125] (1) Plaintiff's background [43] (2) Accident circumstances [44] – [51] (3) Relevant antecedent events on site [52] – [95] (4) Injuries and treatment [96] – [97] (5) Subsequent medical and allied reviews [98] – [99] (6) Disabilities [100] – [108] (7) Work effects [109] – [116] (8) Domestic effects [117] (9) Mitigation [118] – [122] (10) Plaintiff's most likely pre-accident circumstances [123] – [125] Expert liability evidence form Mr Waddell [126] – [140] Issue 1 – The relevant risk of harm [141] – [142] Issue 2 – Respective duties of care [143] – [164] Duty of care owed by the occupiers [144] – [161] Duty owed by plaintiff's employer [162] – [164] Issue 3 – Alleged breaches of duty of care [165] – [231] Consideration of whether first defendant was negligent [170] – [189] Consideration of whether second defendant was negligent [190] – [201] Consideration of whether third defendant was negligent [202] – [214] Consideration of whether fourth defendant was negligent [215] – [231] Issue 4 – Alleged contributory negligence [232] – [257] Contributory negligence alleged by first defendant [237] Contributory negligence alleged by second defendant [238] Contributory negligence alleged by third defendant [239] Contributory negligence alleged by fourth defendant [240] – [241] Essence of contributory negligence allegations [242] – [243] Consideration of contributory negligence allegations [244] – [255] Conclusion as to alleged contributory negligence [256] Issue 5 - Causation [258] – [267] Issue 6 – s 151Z of Workers Compensation Act 1987 (NSW) [268] – [269] Issue 7 – Apportionment between defendants [270] – [282] Issue 8 – Assessment of damages [283] – [308] Non-economic loss [285] – [293] Past economic loss [294] – [296] Past loss of superannuation [297] Future economic loss and superannuation [298] – [303] Fox v Wood [304] Future out-of-pocket expenses [305] – [306] Past out-of-pocket expenses [307] Summary of damages assessment [308] Interim orders [309] – [310] Nature of case 1. On the afternoon of Thursday, 18 September 2008, the plaintiff, Mr Kenneth Apthorpe, then aged 18 years, sustained facial fractures and other injuries in the course of his employment as a roofing labourer. He fell 6 metres to the ground, down a scaffolding void from a second storey scaffolding tower platform, on a residential building site at 7 Morna Point Road, Anna Bay, New South Wales. 2. The plaintiff's fall occurred in circumstances where he had stepped onto unsecured timber bridging planks resting between the edge of the sloping roof of the building and the platform of an adjacent scaffolding tower. The plaintiff's injuries have led to this multi-party consolidated litigation that is variously governed by the Civil Liability Act 2002 (NSW), the Workers Compensation Act 1987 (NSW) ("WC Act") and Workplace Injury Management and Workers Compensation Act 1998 (NSW) ("WIM Act"). Scene of the plaintiff's fall 1. The following post-accident photograph taken at roof level shows the general configuration of the area where the plaintiff was working, also showing the resultant void in the centre foreground after the bridging planks had fallen. [Exhibit "C", p 13] 1. The following post-accident perspective photograph taken from ground level shows the resultant void that was created by the movement of the planks after the plaintiff had fallen. [Exhibit "C", p 1] Parties 1. The first defendant, QBE Insurance (Australia) Limited ("QBE") has been joined pursuant to s 6(4) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) because the head contractor for the building works, JS Petty Pty Ltd, it's insured, is in liquidation. The relevant director of that company was Mr John Petty. He did not give evidence in the proceedings because, despite extensive efforts on the part of the insurer, he could not be found. 2. The second defendant, HTE (Australia) Pty Ltd ("HTE"), was the contractor that erected the scaffolding on the site. The sole director of that company was Mr Christian Green, who gave evidence in the proceedings. 3. The third defendant, Mr Christopher Wright, was a self-employed fascia and guttering contractor who had carried out guttering work on the roof on the site. To carry out his work he had moved some of the timber bridging planks on the scaffold tower platform. Those works affected the safety of the site for other workers. Mr Wright gave evidence in the proceedings. 4. The fourth defendant, Burtwin Pty Ltd ("Burtwin"), was the roof tiling contractor for the site and it employed the plaintiff. At the time of his fall the plaintiff was removing and disposing of redundant roofing tiles from the roof of the building. He was carrying those tiles to the scaffolding tower platform and dropping them into a skip bin at ground level below. The principal of the fourth defendant was Mr David Burt. He did not give evidence in the proceedings. Causes of action pleaded 1. The plaintiff's pleaded causes of action against each defendant are framed in negligence. He alleges various breaches of the duty of care owed by each of the contractors on the site. The regime of the Civil Liability Act applies to the first, second and third defendants. The regime of the Workplace Injury Management and Workers Compensation Act and the Workers Compensation Act applies to the proceedings against the fourth defendant. Issues 1. A review of the pleadings, the evidence and the submissions reveals the following issues as calling for decision in these proceedings: 1. The identification of the relevant risk of harm. My reasons for decision on that issue appear between paragraphs [141] and [142] of this judgment; 2. The duties of care owed by the respective defendants. My reasons for decision on that issue appear between paragraphs [143] and [164] of this judgment; 3. Whether the respective defendants were negligent. My reasons for decision on that issue appear between paragraphs [165] and [231] of this judgment; 4. Whether there was contributory negligence on the part of the plaintiff. My reasons for decision on that issue appear between paragraphs [232] and [256] of this judgment; 5. The cause of the harm suffered by the plaintiff. My reasons for decision on that issue appear between paragraphs [258] and [267] of this judgment; 6. The manner and extent, if any, for the provisions of s 151Z of the WC Act to be applied to the factual circumstances of this case. My reasons for decision on that issue appear between paragraphs [268] and [269] of this judgment; 7. The manner in which liability should be apportioned between defendants. My reasons for decision on that issue appear between paragraphs [270] and [281] of this judgment; 8. Assessment of the heads of damage claimed by the plaintiff in respect of the applicable statutory regimes. My reasons for decision on that issue appear between paragraphs [283] and [308] of this judgment. Documentary evidence 1. The plaintiff tendered documentary exhibits and photographs in the series "A" to "AA". The first defendant similarly tendered exhibits in the series "D1.1" to "D1.8". The second defendant tendered exhibits in the series "D2.1" to "D2.6". The third defendant tendered Exhibit "D3.1". The fourth defendant tendered Exhibits "D4.1" and "D4.2". Those exhibits will be referred to in these reasons where it becomes relevant to do so. Witnesses who gave oral evidence 1. The following witnesses gave oral evidence: 1. The plaintiff gave brief oral evidence. The majority of his evidence substantially proceeded by way of his statement: Exhibit "F". There were no material challenges to his evidence; 2. Mr Damien Lavis, who was on site when the plaintiff fell; 3. Mr Nathan Hamilton, the WorkCover Inspector who investigated the accident; 4. Mr Christian Green, the scaffolding contractor; 5. Mr Christopher Wright, the fascia guttering contractor; 6. Mr Geoffrey Waddell, an expert civil engineer retained by the third defendant to provide an expert report. He was called by the plaintiff and gave his evidence by a telephone link from a remote location. 1. In addition to the oral evidence given by those witnesses a number of witness statements were tendered. Credibility of testimony 1. Before identifying my findings of fact it is necessary to say something about the credibility and the reliability of the testimony of the respective witnesses. The plaintiff 1. My impression of the plaintiff was that he gave credible and reliable testimony on all matters traversed in his evidence. His evidence as to how the accident occurred was understandably within a limited compass. His description of his injuries and related disabilities, and how those matters affected him, was supported by the medical evidence. His evidence on those matters was obviously understated. The defendants accepted the plaintiff was an impressive and honest witness and conceded that his evidence should be accepted. I accept his evidence in its entirety. Mr Lavis 1. Mr Lavis, a tiler working on the site saw the plaintiff fall and went to his assistance. He provided a contemporaneous statement to WorkCover Inspector Hamilton, which was recorded at page 87 of his notebook. On 3 December 2008 he participated in a recorded interview with WorkCover Inspector Walker: Exhibit "Q". He had also given evidence of the events of the accident in the Industrial Court on 23 August 2011. Those accounts were closer in time to the events than the telephone evidence he gave at the hearing of these proceedings. The other parties variously conceded that Mr Lavis gave his evidence in a straightforward and frank way, and that his evidence should be accepted. I accept the submission made on behalf of the plaintiff that the substance of his evidence as given in the Industrial Court (at Exhibit "P", pp 103-106) is more likely to be correct and should be accepted. Inspector Hamilton 1. WorkCover Inspector Hamilton arrived at the scene of the accident at about 4.45pm. He was suitably qualified and experienced in the investigation of industrial safety issues. In the course of his factual investigation he made sequential notes (Exhibit "Q") and took a series of photographs, 34 of which were collated and annotated. Those contemporaneous photographs were tendered in evidence (Exhibit "B" and Exhibit "C") and serve as a reliable record of what he saw. Plainly, his approach to the investigation was thorough and professional. He gave his evidence with careful attention to factual details and was not materially challenged in cross-examination. I concluded that his evidence should be accepted in its entirety. Mr Green 1. Mr Green was responsible for the scaffolding. His contemporaneous conversation about the events of the plaintiff's accident was noted at page 87 of Inspector Hamilton's notebook. Those details were not challenged. Although the events occurred over 10 years ago, there is little room for doubt that those events would have been a significant and sentinel occurrence for Mr Green (his interview with the WorkCover inspector took place within a month of the accident), yet, as was observed in the plaintiff's submissions, he could recall virtually nothing about it: T138 – T140. 2. Mr Green's reaction to being informed that the wooden planks on the scaffolding platform had not been secured was curious. He apparently did nothing on the day of the accident or on the following day to investigate that allegation. The plaintiff has submitted, correctly in my view, that he did not need to make an inspection along those lines because he already knew the truth of that allegation. I accept the plaintiff's submission that in his evidence, Mr Green seemed reluctant and non-committal. 3. I consider that Mr Green's evidence on disputed matters of fact should be regarded with great circumspection. Mr Green was not present when the plaintiff's accident occurred. Without first-hand knowledge of the circumstances of the plaintiff's accident he was nevertheless dismissive of the suggestion that he might be in any way responsible for that accident. 4. On behalf of the second defendant, that is, Mr Green's company, it was submitted that there were no issues with the credibility of Mr Green's testimony. That submission did not sit well with the objective facts. 5. In his evidence, Mr Green retreated to a position of a lack of recall on matters of significance including an argument he had with Inspector Hamilton about the need, or lack of need, for tying down the platform planks. 6. Mr Green's evidence was to the effect that after the scaffolding tower had been raised, it was possible for the timber bridge between the roof and the tower to have been fully planked: T122.9 – T122.17. Whilst it was submitted that in cross-examination on this topic (at T129.21 – T130.12), that evidence was not challenged, I nevertheless decline to accept it because it was plain that Mr Green had proffered that evidence on the basis of a flawed and inaccurate reconstruction of the events. 7. Accordingly, I do not accept his evidence on disputed matters of fact. Mr Wright 1. Mr Wright was the fascia and guttering contractor. I formed the view that his evidence was of limited reliability concerning a number of disputed matters of fact, and except on one matter, his evidence should be regarded with considerable reservation as to its reliability. 2. That exceptional matter which I considered to be reliable was Mr Wright's candid evidence that he had moved the platform planks before the plaintiff's accident. He did so in order to effectively carry out his own work. He said that he had easily pushed back the central planks of the scaffolding platform or timber bridge planks because those planks had not been secured. That evidence was consistent with the observations of Inspector Hamilton and Mr Lavis as to the absence of any evidence of wire ties or their remnants at the base of the scaffolding tower. 3. On the other matters, Mr Wright's evidence had elements of unreliability in that he had provided differing accounts as to if and when he had returned to the site after having worked there on 18 September 2008. 4. In fairness to Mr Wright, his account was given to the WorkCover Inspector Walker on 15 January 2010, which was some 16 months after the plaintiff's accident: Exhibit "J". In that account, he said he had returned to the site some weeks later, that is, between 17 November 2008 and 16 December 2008, which was months later, not weeks later: Exhibit "J"; answers to questions 36, 43, 51, 52, 53. In contrast, in his evidence given in the Industrial Court on 23 August 2011, Mr Wright repeatedly denied having returned to the site on 18 September 2008: Exhibit "H". 5. Mr Wright also gave vacillating evidence as to whether he had an assistant on the site. He later conceded that he could have been on the site on 18 September 2008: Exhibit "H", pp 144-145. Somewhat curiously, in his recollected account given in these proceedings, Mr Wright claimed a recollection of working on the site on the day of the accident, including as to the detail of the work that he had undertaken on that occasion. Those variations in the described circumstances did not sit well together. 6. Mr Wright's reliance on the content of his invoice dated 15 September 2008 as proof of the assertion that he was not on the site on 18 September 2008 was not probative. It is curious that although ultimately he admitted he was on site on the 18th, there was no invoice for his work on that date. 7. There was a stark contrast between Mr Wright's evidence given in the Industrial Court in August 2011 when compared to his evidence in these proceedings. In my view, this was explicable in terms of Mr Wright's perception of risk of sanctions to himself in the former proceedings. In these proceedings (at T201.25 – T202.5), Mr Wright accepted he had given incorrect evidence in the former proceedings about not being on the site on 18 September 2008: T203.10 – T203.26; T203.34 – T203.37. 8. Incredibly, in my view, Mr Wright claimed that his memory of the events at the time of the hearing in February 2019 was better than when he gave an account of events to WorkCover Inspector Walker some 18 months after the accident: T202.8 – T202.23. 9. There was much force to the submissions made by the first defendant to the effect that Mr Wright's evidence should not be accepted as being reliable on account of the vacillating versions he has given of the events in question, including to WorkCover Inspector Walker, his evidence in the Industrial Court, and his evidence in this Court, such that his evidence should not be accepted without corroboration: Written submissions of first defendant, paragraphs 17-23. 10. I consider that on disputed matters of fact, except as to the matters described at [26] above, Mr Wright's evidence should not be preferred when compared to other credible evidence. Mr Nepia and Mr Lutelu 1. Mr Nepia and Mr Lutelu, who were the scaffolders working on the site, provided contemporaneous statements about the plaintiff's accident. Those statements were admitted into evidence because they were unavailable to attend to give evidence. Due notice of this was given pursuant to s 67 of the Evidence Act 1995 (NSW). 2. In those statements (Exhibit "D2.2" and Exhibit "D2.3"), they claimed, without explanatory detail, to have secured the wooden planks and kickboards, and according to them, another scaffolder on site, a Mr McCrombie, was involved in a final inspection of their work. 3. The plaintiff makes the point, validly in my view, that neither Mr Nepia or Mr Lutelu could be cross-examined and therefore, their untested statements should be viewed with considerable reserve because at the time those statements were made, they must have known that their actions would be the focus of a WorkCover investigation. No explanation was given for the failure to call evidence from Mr McCrombie. I conclude that the evidence of Mr Nepia and Mr Lutelu should not be accepted where their evidence conflicts with other witnesses whose evidence was tested by cross-examination. 4. Accordingly, the plaintiff seeks the obvious inferential finding that the evidence of Mr Nepia and Mr Lutelu to the effect that the wooden planks and the adjacent kickboards were secured should not be accepted in the face of compelling and persuasive evidence to the contrary. I accept that submission. Mr JS Petty 1. The builder, Mr JS Petty, could not be located despite extensive efforts to locate him. His statements to the WorkCover inspectors were tendered as admissions. The plaintiff submitted, correctly in my view, that little weight should be given to the exculpatory portions of those statements given the statements could not be tested and also having regard to the circumstances in which those statements were made. I accept that submission. Mr Burt 1. The tiling contractor, Mr Burt, who was the plaintiff's employer at the time of the accident, although available, was not called to give evidence by telephone, as was earlier intimated: T29.7; T160.30. The admissions he had made to the WorkCover inspector were also tendered. The plaintiff submitted, as with the statements of Mr JS Petty, that the exculpatory portions of Mr Burt's statement should be given little weight in view of the fact that his evidence could not be tested, and having regard to the circumstances in which his statement was obtained. I also accept that submission. Mr Waddell 1. Mr Waddell is a civil engineer who was engaged on the plaintiff's behalf. He gave his evidence through a telephone link. His training, qualifications and experience included workplace safety. His evidence was not contradicted by any expert of like qualifications. He considered and analysed a number of possible explanatory scenarios. His ultimate opinion served to support the plaintiff's case in an appropriately balanced and reasoned manner. His explanations were not inherently improbable. I accept his evidence in its entirety. My analysis of his report will be set out before my consideration of the issues calling for decision. Factual background 1. Unless otherwise stated, in the paragraphs that immediately follow, I set out my findings of fact on the topics of: (1) the plaintiff's pre-accident background; (2) the accident circumstances; (3) relevant antecedent events that took place on the site; (4) the plaintiff's injuries and treatment; (5) subsequent medical and allied reviews; (6) the plaintiff's remaining disabilities; (7) work effects; (8) domestic effects; (9) mitigation; (10) the plaintiff's most likely circumstances but for the subject accident. (1) Plaintiff's background 1. The plaintiff is presently aged 30 years. He and his wife have children aged 4 and 2 years. He obtained his HSC in 2007. He had excelled in sports and was physically fit. He sought active outdoor work. He obtained work as a labourer in the third defendant's roof tiling business. The proprietor, Mr Burt was a family friend. The subject accident happened on the plaintiff's first day at work in that employment. (2) Accident circumstances 1. On 18 September 2008, the plaintiff arrived at the work site with his employer, Mr Burt, at about 7.30am. During the early part of the day he had been directed to work at ground level, handling tiles and tending to a tile elevator that was being used to convey tiles to roof level. In the afternoon Mr Burt allocated him to work on the roof to assist the tilers to deal with remnants of tiles that had been stripped off the roof. 2. That work required the plaintiff to dispose of tile off-cuts and broken tiles by dropping them into an open skip bin located at the base of an adjacent scaffolding tower located near the building at ground level, and rising to the level where he was working. In the course of that work, one such bin had become filled, so he decided to drop tiles into another nearby and similarly located bin which was not as full. 3. Initially, in the course of that work, the plaintiff had been standing on the roof and was working in conjunction with others to form a human chain, where tiles and pieces of tiles were being passed down the chain by hand for ultimate disposal. In the events immediately preceding his fall he was dropping redundant and broken tiles into skip bins below. 4. At about 3.30pm that afternoon, whilst the plaintiff was working at the roof edge, he was able to drop tiles to a skip bin below until that bin became full. He saw another less filled skip bin on the ground near the base of the scaffolding tower. He then decided to proceed to a position on the nearby scaffolding platform to enable him to aim and drop the tiles intended for disposal into that bin located on a concrete surface some 6 metres below. 5. To do so, the plaintiff had to walk on timber planks that bridged the gap between the sloping roof of the building and the timber planked surface of the scaffolding tower platform so that he could obtain access to the scaffolding platform deck to conveniently drop the tiles into the less filled bin below. 6. The plaintiff recalls picking up some tiles and whilst carrying them in his arms, he stepped onto the timber bridging planks with the intention of positioning himself on the scaffolding deck to be able to drop the tiles into the bin below from his position on the deck. The plaintiff then fell, although he does not actually recall the fall. 7. At about 3.50pm, an ambulance arrived at the site to assist the plaintiff. He was then taken to hospital. His next recollection was of being in John Hunter Hospital undergoing x-rays. 8. The plaintiff stated, and I accept, that beforehand, no-one had warned him against using or accessing the timber bridging planks to gain access to the scaffolding deck. He said there was no fence or barrier preventing him from accessing the deck. The planked platform seemed to him to be a natural access route for him to conveniently position himself to drop the redundant tiles down into the skip bin below. (3) Relevant antecedent events on site 1. In the antecedent events that preceded the plaintiff's accident a number of significant events occurred on the building site, as now follows. 2. At all material times, Mr JS Petty, the builder and head contractor for the site, retained the overall control and the responsibility for engaging and coordinating the on-site trades and building sub-contractors. In that context, the following background events occurred. 3. Between 3, 4 and 8 September, and possibly also on 9 September 2008, the scaffolder Mr Green and his employees were on the site erecting scaffolding around the perimeter of the building. In addition, an adjacent scaffolding tower had also been erected as an independent structure to be used for storing undamaged tiles that were intended to be salvaged for use on another site. The plan was for those tiles to be given to a friend of Mr Green for use on another construction site. The builder permitted those works and knew of the detail of those works. The original plan was for the redundant tiles to be temporarily stored on the platform of the scaffolding tower and to be removed later with the assistance of a mechanical crane. Subsequently, that plan was abandoned and the tiles were to be discarded. This was made known to the builder. 4. The original height of the scaffolding platform was positioned so that the fascia and guttering contractor, Mr Wright, could carry out his work on the site. However, the scaffolding and the platform were later raised to a greater height. 5. In those events, the builder and head contractor appears not to have taken into account that the erection of the adjacent scaffolding tower was to a height that blocked working access for some other tradesmen to undertake their work, particularly the fascia and guttering work to be carried out by Mr Wright at the front right corner of the roof of the premises. 6. As a result, when Mr Wright attended the site on 15 September 2008, he determined that the bridging planks between the edge of the roof and the scaffolding platform had to be moved so as not to impede his work: T219.37. Ultimately, Mr Wright moved those planks in order to facilitate his work on the site. 7. Before those events, when the scaffolding work was completed the scaffolders placed a "scaff tag" on the scaffolding ladder which would ordinarily serve to inform the builder, or other trades, and anyone looking at it, that all the work carried out by the scaffolder was safe and fit for its intended purpose. 8. The conclusion that the scaffolding was erected as being fit and suitable for its intended purposes might have ordinarily applied but for the fact that there was no visible writing on those tags, which were supposed to be marked with an indelible pen. Although it was asserted that the tags had been appropriately marked, nothing was found to have been written on them when they were inspected after the plaintiff's accident. The proffered explanation was that an incorrect pen had been used by the scaffolders and that rain had washed away the writing. In my view, that explanation was unlikely to be true where experienced scaffolders knew that an indelible pen should be used on such tags. 9. Turning then to the configuration of the planks bridging the gap between the edge of the roof and the scaffolding platform, in my view, the compelling conclusion to be drawn from the circumstances is that the bridging planks had not been tied down or secured. Notwithstanding some untestable evidence to the contrary, and based on that part of Mr Wright's evidence in which he stated that he had moved the planks because they had not been tied down (T224), and which I accept, and the evidence of WorkCover Inspector Hamilton which I also accept to the effect there were no residual signs anywhere on the site of tie wire having been used to secure those planks, I find the bridging planks had not been secured either by tie wire or by any other means. 10. In that regard, I do not accept the submissions made by the second defendant that Inspector Hamilton's evidence and that of Mr Wright should be rejected on this point. I do not accept the submission that the absence of evidence of tie wire remnants on site was an irrelevant matter. I do not accept the untested statements of Mr Nepia and Mr Lutelu as being reliable on this issue. I consider that Mr Wright, who admittedly moved the planks, could not have done so and would not have done so if they had been tied down or otherwise secured by the scaffolders. I find that the unsecured state of those bridging planks meant that they could readily be moved by manual means to other positions on the scaffolding if someone so required, as was described by Mr Wright. 11. In those circumstances, once Mr Wright had moved the planks he made no effort to barricade, block access to, rope off, or warn other persons likely to be on the site, by signs or otherwise, to indicate that the bridging planks between the roof and the scaffolding platform were hazardous in that they had not been secured, and were therefore unsafe as a means of access to the scaffolding platform. Furthermore, no-one informed the builder of those circumstances: T222.09 – T222.19. This meant that the hazard Mr Wright had created went unchecked and continued to remain unabated. 12. It was asserted in evidence that the bridged area between the roof edge and the scaffold platform had been fully planked. The second defendant submitted, based on an assumed acceptance of Mr Green's evidence, that it was possible to fully plank the area once the scaffolding had been raised: T122.9 – T122.17. I find that evidence to be flawed and I find that it should not be accepted. This is because it was based on an inaccurate reconstruction of the events of the accident that did not sufficiently allow for the gap in the configuration that necessarily remained between the scaffolding platform and the roof of the building, after the vertical component of the raised scaffold had been left in situ. The statements of Mr Nepia and Mr Lutelu were not fully descriptive of the circumstances and I find that they are not reliable on this issue. 13. The fact that the plaintiff did not notice the gap in the bridging planks when he was working in the vicinity (T51.29 – T51.32) is explicable by reason of his primary attention being directed to other tasks, and not the configuration of the bridging planks, the latter being the function of the defendants, including his employer. It was submitted that Mr Lavis did not observe a gap in the bridging timbers: T81.3. I considered Mr Lavis' evidence in that regard to be unreliable in that it was based on assumptions, namely: "Well Yeah. I'd say that's a fair point". His evidence in that regard appeared to have been based upon his suggestibility on that topic. His evidence given in the Industrial Court proceedings on 23 August 2011 confirms the tenuous basis for his observations and views, where he said he did not notice anything unusual about the scaffold tower: Exhibit "P", p 98.5. I consider that the evidence of Mr Lavis was not determinative or reliable on that issue. He was unskilled in that regard. 14. At the time of the plaintiff's fall, Mr Lavis had just turned to see the plaintiff, and he immediately then saw him falling straight down into the emergent void after having taken a step forward: Exhibit "P", p 104.27-104.44. When Mr Lavis was interviewed by WorkCover Inspector Walker, he described the bridging planks that fell down into the void with the plaintiff, as having come from the centre of the platform: Exhibit "O", Q73. This meant that the fallen planks had not come away from the edges of the bridging structure but instead, from the centre section. 15. In Mr JS Petty's record of interview with the WorkCover inspector he acknowledged that his role had been to keep the site safe: Exhibit "K", Q67, Q177, Q384. There is no dispute that it was also his role to supervise and coordinate the works and in the course of doing so, it was also his duty to give consideration to safety issues relating to the contemplated works on site, and in relation to the safety of the workers on site who might be affected by those works, irrespective of whether or not they were his employees, or whether they were sub-contractors or the employees of sub-contractors. 16. On 15 September 2008, Mr Wright the guttering contractor, carried out some fascia and guttering work on site. It appears that he did not entirely complete the contracted work on that date, and he therefore returned to the site on 18 September 2008 in order to continue with that work. 17. In the meantime, on 16 September 2008, Mr Green had told Mr JS Petty that he no longer intended to seek to salvage the tiles that were to be removed from the roof. That salvage plan was therefore abandoned: Exhibit "K", Q265 – Q269. On the same day, Mr Green's scaffolders had attended to raise the level of the perimeter scaffolding but this did not alter the configuration of the scaffolding tower or the arrangements for the placement of the bridging planks to be used as a means of access between the roof and the scaffold platform. Thereafter, the scaffolding tower and the bridging planks continued to block access to the edge of the roof where Mr Wright was to carry out his fascia and guttering work. 18. On 16 September 2015, as is evident from statements obtained by WorkCover, three scaffolders employed by Mr Green, namely Mr Nepia, Mr Lutelu and Mr McCrombie, attended the site to raise the height of the scaffolding to suit the next stage of the works: Exhibit "D2.2" and "D2.3". 19. I accept the submission made on behalf of the plaintiff that those scaffolders could not have helped but notice that an obvious space or gap had been left in the configuration of the bridging planks because of the presence of a section of upright scaffolding comprising a metal post that they had left to visibly protrude proud of the level of the other platform planks. 20. Before Mr Wright came onto the site to carry out his work on the fascia and the guttering, the scaffolding tower had been raised to a sufficient height to enable both him and the roof tiling contractor, Burtwin, and their various employees, to access the roof, the guttering and the fascia areas, subject to the obstacles created by the scaffolding planks and the associated platform. 21. When Mr Wright came onto the site, it was evident to him that the bridging planks between the roof and the scaffolding tower had been left in a position that would impede his work. Mr Wright therefore proceeded to move all but the two edge planks to push them back onto the platform in order to carry out his work. Those facts were known to Mr JS Petty, who had already told Mr Wright that the scaffolding tower would no longer be used by the roof tilers to reclaim the old tiles as was previously planned: T217.14. It therefore seemed reasonable to Mr Wright to move those planks without further reference to Mr JS Petty. 22. On behalf of the first defendant, it was argued that Exhibit "D1.7" indicated that Mr Wright's work had been left in an incomplete state on 15 September 2008, which was why he had returned on 18 September 2008, and even then, after the plaintiff's accident, his work had also been left in an incomplete state on that day. It is immaterial as to whether this work occurred on 15 or 18 September 2008. The uncontroverted fact was that Mr Wright was on site at the same time as the tiling team and was working on the guttering in the vicinity, on 18 September 2008, which explains why he had moved the bridging planks before the plaintiff's fall. 23. Mr Wright said that he had not replaced or re-positioned the bridging planks into their original position at any stage either during or after he had completed any part of his work. This was because he was of the opinion that those planks were resting on an uneven sloping tile surface and therefore to replace them into that position would be unsafe: Exhibit "J", Q71. When the scaffolders returned to the site on 16 September 2008 the position of those planks, as altered by Mr Wright, must have been plainly apparent to them notwithstanding that their statements were to the contrary effect. 24. I find that the scaffolders most probably moved and re-positioned the bridging planks when they carried out the work of raising the scaffolding on 16 September 2008. It is noteworthy that in their statements comprising Exhibits "H", "D2.2" and "D2.3", neither Mr Nepia nor Mr Lutelu described the detail of the work they had undertaken on 16 September 2008. They said they had simply re-inspected the modification work on that day: Exhibit "H"; "D2.2" par 14; Exhibit "H", "D2.3" par 13. 25. I find that when the scaffolders moved the bridging planks they did so in a way that left at least one of those planks in a precarious position which no-one had recognised as hazardous before the plaintiff attempted to access the tower via the bridging planks at the time he fell. 26. Although the subject of dispute, I am satisfied that those bridging planks had not been secured, either by tie wires, or otherwise. I make that finding, notwithstanding the untested content of the WorkCover statements to the contrary by Mr Nepia and Mr Lutelu. In that regard, I prefer that part of the evidence given by Mr Wright who said he found there was no tie wire in place securing the planks when he came onto the site after the scaffolding had been raised. This is also consistent with the evidence of Inspector Hamilton, who found no residual evidence of tie wires having been used on the site. 27. The work diary of Mr JS Petty (Exhibit "X") showed that it had been raining on site on the morning of 17 September 2008, and that windows had been delivered in the afternoon and stored on site. I infer from Mr JS Petty's work diary that no other substantive building work was carried out that day before the tilers and the plaintiff arrived on site early on the morning of 18 September 2008. 28. In Mr JS Petty's version of events as given to the WorkCover Inspector, some 2 months after the plaintiff's accident, he claimed that about 2 days before the plaintiff's accident, he had inspected the scaffolding tower on the site by viewing it from ground level, and at that time had observed that all of the bridging planks were there: Exhibit "K", Q307, Q311 and Q314. An inspection from that positon on the ground would not have revealed the presence of tie wires securing the planks if in fact tie wires had been used. 29. I consider that Mr JS Petty's ground level inspection, if it occurred, was inadequately performed because it must have been undertaken from a point on ground below, at an apparent distance of about 6 metres. If such an inspection had been performed from roof level, it most likely would have become readily apparent, even to the casual observer, that there was a partial void, gap or space in the configuration of the bridging planks to accommodate the portion of the vertically protruding and visible scaffolding component. I also consider that in those circumstances a proper inspection by the head contractor builder who was also responsible for safety on site would have revealed that the bridging planks, which formed part of the structure, had not been secured by tie wires or by any other means. 30. If Mr JS Petty had properly inspected the scaffolding and the surrounds, it is most likely that he would have responded by seeking to neutralise the dangerous state of those bridging planks by taking prudent precautions, by at least providing appropriate warnings to those persons who were likely to be affected by the risks and dangers, and by securing the area to prevent access by other workers on the site. 31. In my view, the need for such precautions became relevant at that time because by 18 September 2008, when the tilers were on the site, Mr JS Petty would have known they would be working near the scaffold platform and that they would be likely to be accessing the bridging planks to the scaffolding platform in the course of carrying out their work of disposing of redundant tiles and related disused building materials. 32. Mr JS Petty, whilst knowing that those works would proceed, took no steps to barricade, fence, warn, rope off or otherwise prevent walking access to the scaffolding platform before the plaintiff's fall. As a consequence, the bridging planks were left in an unsafe state. I accept the expert opinion of Mr Waddell that the bridge to the scaffold would have been in an unsafe state at that time, and that it would not have been considered acceptable or safe if it had been properly inspected before the plaintiff's accident: Exhibit "Z", paragraphs 7.17-7.18. 33. The unsafe position of the bridging planks was a circumstance that could have been readily recognised through a simple visual inspection by each of Mr JS Petty, Mr Green, Mr Wright, and Mr Burt, had they taken the time and made the basic effort to carry out an adequate inspection from the roof level, rather than simply looking up at the structure from the ground level, which normally required looking up from an angle which would not be revealing of the safety problem that should have been evident to them. 34. Mr Burt said that he knew nothing of any hole or gap in the bridging timbers and had no concerns: Exhibit "Y", Q149 – Q150. In my view, this evidence indicates that he did not carry out an adequate inspection of the area where he had allocated his employees to do their work on that afternoon. Furthermore, he did not properly supervise them. Mr Burt's position in that regard, and Mr JS Petty's evidence to the effect that he saw nothing wrong with the bridging planks when viewed from the ground (Exhibit "K", Q242 and Q312), indicates that any inspections that might have been carried out by them at the time, were inadequate to the safety demands of the circumstances that were well evident to an ordinarily experienced eye on the site. 35. Mr JS Petty had intimated to Mr Wright, either by his words or his silence, that the scaffolding was in a suitable state for Mr Wright to carry out his work in that area. On accessing the area, Mr Wright recognised that in order to carry out his work, he had to move the bridging planks to enable him to complete installation of the perimeter guttering. I accept Mr Wright's evidence that if he had seen tie wires in situ on the bridging planks, he would not have removed them, and instead, he would have called on Mr JS Petty to attend to the issue of access to enable him to do his work: T224.38. I am persuaded by, and accept the plaintiff's submission that it was the apparent ease with which Mr Wright could move the bridging planks which led to his decision to do so. 36. I find that Mr Wright had simply left the bridging planks in the position to which he had moved them. I consider that the most likely and correct explanation for this was that at the time of the plaintiff's injury, Mr Wright's work in that area was yet to be completed and he therefore still needed the access space he had created by moving the bridging planks. I also find that in doing so, he did not inform Mr JS Petty of the altered configuration in which he had left those bridging planks in juxtaposition to the protruding vertical scaffolding post: T222.09 – T222.19. 37. The effect of Mr Wright having pushed back the bridging planks was that this had created a void of about 1.8m in width and between 1.5m to 2m in depth at that point, where there was some scaffolding below. I find that it would have been highly improbable that Mr JS Petty would not have acted to take precautions to neutralise the danger posed by the existence of that void had he taken the time and the opportunity to undertake a proper inspection of the area before other workers on the site were permitted to have access to that area. 38. A question arises as to how the bridging planks became located around the protruding scaffolding components after the scaffolding had been raised. The competing possibilities are that the scaffolders had left the planks in that position unsecured, or that Mr Wright did so in order to carry out his work. Given that neither of the scaffolders' statements refer to the protruding vertical scaffolding component, despite the fact that the post had undoubtedly been left there by them after they positioned the planks, I consider the most likely circumstance was that the scaffolders left the bridging planks arranged around the protruding scaffolding component, thereby exposing a gap to accommodate that post. It was because the planks had been left in that state that Mr Wright found it necessary and possible to move them in order to carry out his work. 39. Those were the background events to the plaintiff entering that part of the site and gaining unrestricted access to the bridging planks and scaffolding platform to carry out the work described at [45] to [49] above. Mr JS Petty acknowledged that it was likely the tilers would use the deck of the platform in the manner which the plaintiff had intended: Exhibit "K", Q271 – Q273, Q289, Q304 and Q306. It follows that the bridging planks were foreseeably likely to be used as a means of access to that platform or deck. 40. The plaintiff was carrying tiles or parts of tiles in his arms when he adopted that means of access. In doing so, he was obviously required to concentrate on multiple tasks. It was in those circumstances that Mr Lavis saw the plaintiff fall, along with four bridging planks that had fallen with him: Exhibit "O", Q71. 41. The first defendant argued correctly, in my view, that the plaintiff, being unaware of Mr Wright's alterations to the configuration of the bridging planks, and being unaware of the unsafe condition of those planks, thought he was walking onto bridging planks. Those planks ought to have been secured. Instead, the plaintiff stepped onto an area that became open space whilst carrying tiles in a manner where the tiles were placed in front of his line of sight as he walked down the pitch of the roof, whilst either gaining or maintaining walking momentum, which would have impaired his vision for what was immediately in front of him: T53.42. 42. This meant that as a consequence, the plaintiff walked down the pitch of the roof, and then stepped onto an unsecured plank and then into open space. In those circumstances his momentum would have propelled him against and past the loose bridging planks as he fell. In those circumstances he would most likely have reached for or brushed against the loose planks, that were overhanging the area, and in the process they probably became unbalanced, dislodged, and then fell down to the ground with him. 43. On that scenario, which I accept as most probably correct, the first defendant, joining with the plaintiff, argued there should be no contributory negligence on the plaintiff's part. They also argued that there should only be notional liability on the part of the plaintiff's employer. 44. The plaintiff argued that his fall occurred because of the complete failure of the central planked area of bridging planks on the first occasion that area had been used by him to access the scaffolding platform. The plaintiff also argued that the danger of collapse of the bridging planks had been created by the scaffolders, and that if the bridging planks had been properly secured, they would not have collapsed. It was also argued that if the planks had been tied they would not have collapsed under the plaintiff's weight, and more importantly, from the perspective of a causation analysis, beforehand, Mr Wright would not have been able to move those planks in the first place. (4) Injuries and treatment 1. The plaintiff's injuries were identified by the attending ambulance and hospital personnel. They noted the plaintiff had sustained fractured facial bones which were later identified as comprising a comminuted blow-out orbital fracture, a right eye injury, a laceration to his occiput, and tenderness of the lumbar spine. The plaintiff was transported to John Hunter Hospital for assessment and treatment: Exhibit "D", p 1; 2. Between 18 September 2008 and 21 September 2008, the plaintiff remained as an inpatient at John Hunter Hospital. He underwent CT scans which revealed a severely comminuted and depressed fracture through the medial wall of the right orbit with an associated fracture of the orbital wall, and significant surrounding soft tissue injuries. He underwent surgical treatment for a fracture of his right orbital floor and the medial wall of his right eye socket and the repair of lacerations to the right eyelid: Exhibit "D", p 2; (5) Subsequent medical and allied reviews 1. The chronology of the plaintiff's subsequent assessment and treatment is as follows: 1. On 23 September 2008, at the referral of John Hunter Hospital, the plaintiff was assessed by Dr Barry Reed, an oral and maxillo-facial surgeon for evaluation of his grossly comminuted and grossly displaced orbital/mid-facial (nasoethmoidal orbital) fractures. Dr Reed recommended an open reduction and fixation with titanium plates and screws: Exhibit "D", pp 6-7; 2. On 29 September 2008, Dr Reed noted that the plaintiff's extensive right eye swelling prevented the planned surgery from proceeding. It was then postponed to 7 October 2008. Dr Reed also sought an ophthalmic review for the plaintiff: Exhibit "D", p 7; 3. On 10 October 2008, at Lake Macquarie Private Hospital, Dr Reed undertook surgical repair of the plaintiff's facial fractures. The plaintiff remained in that hospital until 16 October 2008: Exhibit "D", pp 8-10; 4. On 24 October 2008, the plaintiff was readmitted to hospital for wound debridement and removal of the surgical sutures: Exhibit "D", pp 11-12; 5. On 24 February 2009, the plaintiff was seen by Ms Bernadette Cross, a consultant psychologist, for treatment of his adjustment issues consequent upon his injuries. She diagnosed post-traumatic stress disorder ("PTSD") characterised by irritability, anger outbursts, intense fear, persistent re-experiencing of the underlying event, with recurrent intrusive and distressing recollections, avoidant behaviour, and difficulties concentrating, and social withdrawal. She predicted a treatment regime over 1 – 2 years was required: Exhibit "D", pp 19-25; 6. On 10 June 2009, at the request of the workers' compensation insurer, the plaintiff was assessed by Dr Graham Vickery, a consultant psychiatrist: Exhibit "D", pp 48-54. After reviewing the plaintiff's history and presenting complaints, Dr Vickery carried out a mental state assessment and then addressed a series of questions that he had been asked to consider. After noting the plaintiff's downcast and despondent state, and avoidance of eye contact, Dr Vickery noted the plaintiff's symptoms would not have otherwise developed but for the accident; the plaintiff was suffering from resolving PTSD; he had depression and anxiety entirely related to the subject injury. Dr Vickery believed (without supporting reasons) that the plaintiff's prognosis was optimistic for a full recovery: Exhibit "D", pp 52-54; 7. On 14 July 2009, Dr Reed carried out a number of periorbital incisions on the plaintiff's head for treatment of his residual facial deformity, globe depression, residual diplopia and medial canthal displacement following significant bone resorption after the earlier surgery: Exhibit "D", p 14; 8. On 13 August 2009, Ms Cross again reviewed the plaintiff. She noted his depressive symptoms had increased significantly. She also noted increased anhedonia, disinterest, amotivation, fatigue, insomnia, depressed mood, difficulty thinking clearly, indecisiveness and feelings of hopelessness. Ms Cross suggested the plaintiff's general practitioner review the plaintiff's medication options for those uncharacteristic symptoms, including his acopia: Exhibit "D", p 26; 9. On 25 September 2009, Dr Reed reviewed the plaintiff and suggested further surgery aimed at improving the cosmetic appearance of the right orbital region and facial deformity, with associated double vision: Exhibit "D", p 13; 10. On 10 December 2009, Ms Cross reviewed the plaintiff and informed the workers' compensation insurer and the plaintiff's general practitioner that the plaintiff was experiencing significant suicidal thoughts, which indicated a need for a crisis plan which, after implementation, resulted in a decrease in his symptoms. She outlined the need for the plaintiff to have more psychological treatment and occupational rehabilitation support to assist with a return to work: Exhibit "D", pp 27-28; 11. On 3 May 2010, Dr Reed referred the plaintiff to Dr Anthony Maloof, an ophthalmic surgeon, for further assessment and for corrective surgical treatment of the global depression of the right eye, and his medial canthal deformity: Exhibit "D", pp 14-15; 12. On 11 May 2010, the plaintiff saw Dr Maloof at the referral of Dr Reed. Dr Maloof recommended a three-staged surgical approach to first, repair a telecanthas with plating of the orbit and canthus reconstruction; secondly, repair of a nasolacrimal mucocoele; thirdly, lower eyelid wound revision and an associated canthus elevation procedure: Exhibit "D", pp 61-62; 13. On 18 June 2010, Dr Maloof wrote to the workers' compensation insurer to identify a likely recovery period of about a month following the first suggested surgery. However, he stated that there would not be a return to an entirely normal appearance: Exhibit "D", p 63; 14. On 5 August 2010, the plaintiff again consulted Dr Maloof. Dr Maloof's clinical notes concerning his 12 consultations with the plaintiff between 5 August 2010 and 16 August 2011 were tendered: Exhibit "D", pp 55-60; 15. On 11 August 2010, Dr Maloof performed the first stage of his planned surgery. This involved a scalp incision, and the insertion of a temporal bone graft to elevate the right orbit after removal of the old plates: Exhibit "D", p 64; 16. On 26 October 2010, Dr Maloof referred the plaintiff to Dr Neil Rowe, another specialist ophthalmic surgeon, for a further opinion on the management of the plaintiff's persistent hypertropia and for squint surgery: Exhibit "D", p 65; 17. On 14 December 2010, the plaintiff consulted Dr Rowe at the referral of Dr Maloof. Dr Rowe planned for squint surgery to take place after the already planned medial orbital remodelling and lacrimal surgery that was scheduled for February 2011: Exhibit "D", pp 77-78; 18. On 10 February 2011, Dr Maloof reviewed the plaintiff and wrote to Dr Rowe asking him to undertake the squint correction surgery: Exhibit "D", p 66; 19. On 28 March 2011, Dr Rowe referred the plaintiff to Professor Glen Gole, a tertiary ophthalmic surgeon, for consideration of further management and treatment: Exhibit "D", p 76; 20. On 27 April 2011, Ms Cross reported to the general practitioner that the plaintiff was working well in what was by then his new apprenticeship, and that he was overall, coping with the frustration and anxiety relating to having to wait for his next surgery. She noted some improvements concerning the plaintiff's problems with alcohol dependence, sleep difficulties, and cognitive acceptance of his facial changes and disfigurement: Exhibit "D", pp 29-30; 21. On 22 June 2011; Dr Maloof wrote to the workers' compensation insurer to seek approval for the three-stage surgery he had previously suggested: Exhibit "D", p 67; 22. On 20 July 2011, Dr Maloof undertook further surgery on the plaintiff which he described as right (eye) wound revision, debulking of orbital floor calvarial bone graft, endoscopic dacrocystorhinostomy, sub-mucus resection of the nasal septum, and middle turbinectomy: Exhibit "D", p 68; 23. On 2 August 2011, Dr Maloof again reviewed the plaintiff. He suggested the plaintiff proceed to squint surgery in about one month: Exhibit "D", p 69; 24. On 19 August 2011, Ms Cross prepared a psychological treatment report for the plaintiff's solicitor: Exhibit "D", pp 31-39. In that report (at pp 33 – 34), she noted the details of the plaintiff's wide-ranging and ongoing symptoms, and (at pp 35-37), she identified the fact that the plaintiff's PTSD is a severe disorder that is typically difficult to treat and was generally chronic and unremitting. She also noted (at pp 38-39), that the plaintiff had already attended some 36 psychological treatment sessions and she recommended the plaintiff continue to receive psychological intervention, particularly for adjustment symptoms relating to physical symptoms, psychological issues, including social anxiety due to his facial disfigurement, and his distress about his pending surgeries; 25. On 23 August 2011, Dr Maloof again reviewed the plaintiff as a prelude to further surgery: Exhibit "D", p 70; 26. On 29 August 2011, Dr Rowe wrote to Dr Maloof explaining the details of the surgery planned for 17 October 2011, namely a right sided superior rectus muscle resection: Exhibit "D", p 79; 27. On 28 September 2011, Ms Cross provided the plaintiff's solicitor with an updated psychological treatment report: Exhibit "D", pp 40-44. She noted (at p 41), that the plaintiff's chances of a full recovery were blocked by the ongoing need for repeat facial surgeries that set him back both physically and psychologically, instigating a potential long-term chronic condition. She also noted (at p 42), that full recovery was also largely blocked by the likelihood of the plaintiff's permanently altered facial appearance, body image distress, and related self-esteem issues, which she set out in persuasive detail. She recommended that the plaintiff be provided with ongoing psychological treatment for several years: Exhibit "D", pp 42-43; 28. On 13 October 2011, Dr Rowe wrote to the workers' compensation insurer seeking approval for the plaintiff's surgery to improve his cosmetic appearance and visual function: Exhibit "D", p 80; 29. On 17 November 2011, the plaintiff was booked for and received squint surgery on his right eye that was undertaken by Dr Rowe at the Epping Surgery Centre: Exhibit "D", pp 75-76, p 81; 30. On 6 December 2011, Dr Rowe arranged for a clinical meeting with other ophthalmic consultants to discuss further management of the plaintiff's condition, which was described as a frozen right orbit: Exhibit "D", p 82; 31. On 1 March 2012, Dr Rowe wrote to the plaintiff to advise of the outcome of the clinical review meeting, namely that he should be referred to Professor Glen Gole, a specialist in Brisbane: Exhibit "D", p 83, p 85; 32. On 16 April 2012, Dr Rowe ordered an MRI scan of the plaintiff's right orbit: Exhibit "D", p 84; 33. On 25 June 2012, Dr Rowe wrote to the medical records department of Westmead Hospital for details of the metal implants used in the previous surgery: Exhibit "D", p 86. He then also referred the plaintiff to Professor Gole: Exhibit "D", p 87; 34. On 1 November 2012, Dr Maloof wrote to the plaintiff's solicitor to describe the treatment he had provided until this time: Exhibit "D", p 71; 35. On 17 January 2013, Dr Rowe wrote a detailed report to the plaintiff's solicitor: Exhibit "D", pp 88-92. That report summarised the treatment the plaintiff had received to that point. Dr Rowe identified the plaintiff's ongoing problems with double vision and an upturning right eye, a right on left vertical tropia and right extropia and reduced downward eye movements, and the plaintiff's aesthetic concerns. He summarised the plaintiff's problems as being a frozen orbit consequent upon the previous orbital blow-out fractures, with soft tissue fibrosis and muscle scarring. Dr Rowe noted that post-injury surgeries had most likely exacerbated limitation in vertical eye movements; 36. On 1 February 2013, the plaintiff consulted Dr Michael Delaney, a consultant ophthalmic surgeon, at the request of his solicitor: Exhibit "D", pp 123-128. Dr Delaney considered the plaintiff's condition had not stabilised at that time: Exhibit "D", p 126; 37. On 11 April 2013, at the request of the plaintiff's solicitor, he was examined by Dr Hunter Fry, a plastic and reconstructive surgeon: Exhibit "D", pp 96-103. Dr Fry was pessimistic about cosmetic improvement. He considered (at p 98), that the plaintiff had a significant cosmetic disability, plus ophthalmic problems. He identified a severe disadvantage in the plaintiff's industrial capacity; 38. On 2 May 2013, Dr Rowe wrote to Professor Gole seeking further advice on possible treatments, including amniotic membrane re-placement surgery: Exhibit "D", p 93; 39. On 27 June 2013, Dr Maloof wrote to Professor Gole summarising the treatment to date, noting that the planned squint surgery had not yet taken place: Exhibit "D", p 72; 40. On 10 December 2013, Professor Gole reviewed the plaintiff and wrote to Dr Rowe with his further surgical management of his visual problems. Professor Gole identified the plaintiff's problems as being in "the too hard basket": Exhibit "D", p 103; 41. On 28 March 2014, Dr Rowe wrote to Professor Gole to enclose further medical records to assist him in the management of the plaintiff's condition: Exhibit "D", p 94; 42. On 2 June 2014, Professor Gole asked Professor Tim Sullivan to see the plaintiff in Brisbane for advice as he felt he could not perform any useful squint surgery in view of the fibrosis that was identified as being present at exploratory surgery: Exhibit "D", p 104; 43. On 28 October 2014, Professor Sullivan wrote to Professor Gole advising he would need to see further imaging scans before he could advise further: Exhibit "D", p 105; 44. On 3 November 2014, Dr Rowe wrote to Professor Sullivan in relation to the plaintiff's treatment: Exhibit "D", p 95; 45. On 5 January 2015, Professor Sullivan wrote to Professor Gole advising it would be reasonable to have exploratory surgery for removal of all or part of the calvarial bone graft and titanium plates. He also suggested some related tests and procedures: Exhibit "D", p 106; 46. On 11 June 2015, the plaintiff underwent surgical removal of an orbital plate and revision of the orbital floor fracture repair, performed by Professor Sullivan: Exhibit "D", p 107; 47. On 24 June 2015, Professor Sullivan wrote to Professor Gole to report on the recent surgery, noting post-operative improvement in horizontal eye movements and in most vertical movement: Exhibit "D", p 108; 48. On 14 October 2015, Professor Sullivan wrote to Professor Gole regarding a further dacrocystorhinostomy procedure carried out on this date: Exhibit "D", p 109; 49. On 9 November 2015, Professor Sullivan wrote to Professor Gole suggesting a further surgical repair to try and achieve cosmetic symmetry: Exhibit "D", p 110; 50. On 7 December 2015, Professor Sullivan performed right tarsal strip surgery on the plaintiff's right lower eyelid to correct an ectropion: Exhibit "D", p 111; 51. On 4 April 2016, Professor Sullivan reviewed the plaintiff, noting that his residual problems involved a significant eye motility disturbance, with some excess upper eyelid skin. He noted the plaintiff needed regular ongoing review, and he returned the plaintiff to the care of Professor Gole: Exhibit "D", p 112; 52. On 19 July 2016, the plaintiff was re-examined by Dr Delaney: Exhibit "D", pp 128-132. Dr Delaney considered (at p 130), that at that time, the plaintiff's visual system had by then stabilised to the point of maximum medical improvement, and noted (at p 131), that the plaintiff would be subject to occupational restrictions. 53. On 17 May 2017, at the request of his solicitor, the plaintiff was assessed by Dr Christopher Bench, a consultant psychiatrist: Exhibit "D", pp 113-122. Dr Bench diagnosed (at p 120), that the plaintiff's PTSD was in partial remission, with a Major Depressive and alcohol dependence episode in remission. Dr Bench considered (at pp 120-121), that the plaintiff's prognosis was guarded, with ongoing effects of self-consciousness due to facial scarring and asymmetry, difficulty socialising, which presented the plaintiff with lifelong implications; 54. On 28 November 2017, at the request of the solicitor for the first defendant, the plaintiff was assessed by Dr Robert Lewin, a consultant psychiatrist: Exhibit "D1.6". Dr Lewin reviewed the plaintiff's ongoing symptoms and (at p 10), considered "the residual features are insufficient to diagnose any psychiatric condition". His opinion was that the plaintiff's PTSD, his depressive condition and drinking problem was largely in remission. Dr Lewin accepted (at pp 10-11), that the plaintiff needed some allowance for future treatment; 55. On 2 October 2018, Dr Maloof wrote to the workers' compensation insurer advising of the need for the plaintiff to have a re-opening of earlier surgery with a revision endoscopic dacrocystorhinostomy, seeking approval for same: Exhibit "D", p 73; 56. On 21 February 2019, Dr Maloof prepared a supplementary letter which identified likely replacement intervals of approximately 5 years for the plaintiff's plastic tear duct drainage tubes, with associated costings. He attached some illustrative explanatory photographs to his report: Exhibit "U". 1. I accept that the plaintiff's account of his problems was truthfully provided to the various practitioners who examined him, as summarised above. (6) Disabilities 1. In light of my acceptance of the plaintiff's historical accounts as were provided to those persons who examined him, I consider that in addition to his oral evidence and the evidence within his statement comprising Exhibit "F", it is appropriate to draw upon the various reports summarised above as evidence on relevant factual matters, particularly on matters of background, injuries, treatment and the plaintiff's ongoing disabilities: Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25, per Heydon JA at [70]; Ceva Logistics (Australia) Pty Ltd v Redbro Investments Pty Ltd [2013] NSWCA 46, at [142]–[143]; s 60 of the Evidence Act 1995. 2. The plaintiff's remaining disabilities are of a physical, cosmetic and psychological nature. 3. The result of the fractures and the multiple surgeries the plaintiff has had is that he has a significant right sided facial deformity. This includes a ptosed, drooped or downward looking right eye, due to anatomical alteration to the structures of his right orbit, and a related neurological disability. This in turn has left him with an abnormality in his gaze and vision due to a squint, which persists despite 10 attempts to date at remedial surgery, with the prospect of further surgery being required in the form of repeat or revision dacrocystorhinostomy. 4. The plaintiff has significant post-operative scarring not only around the right orbit, but a semi-circumferential scar on his scalp, from ear to ear, resulting from remedial surgery to gain appropriate internal access to his fractures in order to better reduce them. The plaintiff's scarring, especially the latter scar, is disfiguring. It is embarrassing to him. With his receding hairline and his need to wear his hair close cropped because of his work, it is an obvious cosmetic defect that affects him in that he is very self-conscious about his altered appearance. 5. The plaintiff's post-injury headaches have receded in frequency in recent times, but he still experiences them occasionally. The plaintiff has difficulty with spatial and distance judgments, and occasionally mispositions objects and difficulty trying to catch objects. He is unsafe on uneven ground due to his visual problems. He needs to wear corrective glasses for reading and driving. 6. The plaintiff finds he cannot watch television for prolonged periods due to the onset of headaches. His right eye is constantly watery and chronically bloodshot in appearance. He needs to periodically clean his lacrimal drainage tube. He has difficulty working in poor lighting conditions and needs to take more care to concentrate on his surroundings. This slows him down in comparison to his work colleagues. He has problems using some hand tools, such as hammers, due to his poor visual and spatial judgment. He can no longer work safely at heights. 7. In addition to those matters, the plaintiff has PTSD, presently largely in remission, but this underlying condition is prone to recrudescence given exposure to certain triggers. He also suffers from depression, which varies in its intensity, and he experiences social withdrawal. 8. The plaintiff still occasionally experiences vivid nightmares. His nihilistic thoughts have receded in recent years. At times he wakes in a sweat at night and this causes him to feel distressed. This recurs about once a month. He remains self-conscious about his facial appearance. This frustrates him and interferes with his social and sporting activities. He no longer enjoys sport as was previously the case. 9. These are all deleterious matters of great significance to the plaintiff. Those matters will be taken into account in assessing his claim for damages for non-economic loss and loss of earning capacity. (7) Work effects 1. The medical evidence makes various references to the effect of the plaintiff's injury on his future employment. 2. At an early stage, Dr Vickery noted that the plaintiff would be unlikely to undertake activities involving heights: Exhibit "D", p 54. Dr Bench endorsed that view from the psychiatric perspective, and extended that restriction to involve working near windows or work with ladders: Exhibit "D", p 121. 3. Dr Fry noted that the plaintiff had a loss of capacity for work involving multiple first time contact with members of the public or any work requiring binocular vision: Exhibit "D", p 98. 4. Dr Lewin noted that the major barrier to the plaintiff working was his physical condition and its consequences. He described the plaintiff's considerable apprehension about working at heights, with manifest symptoms of anxiety which impairs his function in that regard. Dr Lewin considered the plaintiff's capacity to work in the open labour market was affected by apprehensiveness and discomfort if he was required to work at heights or on scaffolding. 5. Dr Lewin felt that the plaintiff was otherwise completely unrestricted in his capacity to work: Exhibit "D1.6". In my view, that latter opinion was somewhat discordant with the other medical opinions. It will be revisited in connection with the assessment of the plaintiff's damages for future economic loss. 6. Dr Delaney was of the view that because of the plaintiff's limited binocular single vision he would have to take great care when working at heights or when he might be required to be near moving machinery. Dr Delaney also observed that the plaintiff would need to be slower than normal in carrying out some occupations, noting that it would be preferable that the plaintiff did not work at heights. Dr Delaney was also of the view that the plaintiff's day-to-day difficulties would extend to driving due to reduced depth perception, stereopsis and double vision: Exhibit "D", p 126. 7. Significantly, Dr Delaney noted that at present, the plaintiff is fortunate to have an understanding employer willing to accept the plaintiff's work restrictions. He added: "…Exposure to dust and debris when working underground exacerbates all his symptoms and if at all possible he would benefit from an occupation where he was not exposed to dust or noxious fumes in order to reduce his watering and its subsequent effects on his vision. It would therefore be preferable if he could find work in an environment where he was not exposed to these irritants. Mr Apthorpe should also avoid work at heights or near moving machinery due to his double vision and the risk of further injury, but with care and diligence he can continue working in such situations but will definitely be slower than normal." [Ex "D", p 131] 1. The significance of the above matters will be revisited when assessing the plaintiff's claim for economic loss damages. (8) Domestic effects 1. The plaintiff's physical and work restrictions will also have some carry-over effects on his capacity to perform some commonplace domestic tasks. This will undoubtedly give rise to a degree of an accident-related need for domestic assistance. The plaintiff makes no claim for such damages. (9) Mitigation 1. Insofar as the claim for damages assessed pursuant to the Civil Liability Act is concerned, there is no statutory requirement relating to mitigation of damage. However, the plaintiff is under a common law duty to mitigate his loss. The defendants carry the onus of showing a relevant failure to mitigate the plaintiff's claim brought under the Civil Liability Act. No challenge was made to the plaintiff's evidence in that regard. 2. Insofar as the plaintiff's damages are assessed pursuant to the work injury damages scheme, the plaintiff is under a duty to mitigate his damage and he bears the onus of showing that he has taken all reasonable steps to do so. In that regard, s 151L of the Workers' Compensation Act provides: 151L Mitigation of damages (1) In assessing damages, the court must consider the steps that have been taken, and that could reasonably have been or be taken by the injured worker to mitigate those damages. (2) In particular, the court must consider the following matters: (a) whether the injured worker has undergone appropriate medical treatment, (b) whether the injured worker has promptly sought suitable employment from the employer or, if necessary, suitable alternative employment, (c) whether the injured worker has duly complied with the worker's obligations under Chapter 3 of the 1998 Act (Workplace injury management), (d) whether the injured worker has sought appropriate rehabilitation training. (3) In any proceedings for damages, the person claiming damages has the onus of proving that all reasonable steps to mitigate damages have been taken by the injured worker. However, the person claiming damages does not have the onus of establishing that the steps referred to in paragraphs (b)–(d) of subsection (2) have been taken, and the court assessing damages does not have to take the matters referred to in those paragraphs into account, unless it is established that before those steps could reasonably be expected to have been taken the worker was made aware by the employer or insurer that the worker was required to take those steps. (4) In any proceedings for damages, a written report by a person who provided medical or rehabilitation services to the injured worker is admissible as evidence of any such steps taken by that worker. 1. I find that the plaintiff has satisfactorily demonstrated that he has fulfilled all of the reasonable requirements of his duty to mitigate his damage irrespective of which scheme applies to the assessment of his entitlement to damages. 2. In that regard, he has pursued reasonable treatment options, he has accepted successive recommendations for surgical treatment and has undergone those recommended surgeries. He has also accepted advice and obtained psychological counselling. More importantly, he obtained alternative mitigatory employment at the first opportunity. 3. It has not been suggested that he has unreasonably failed to mitigate his damage. (10) Plaintiff's most likely pre-accident circumstances 1. Section 13 of the Civil Liability Act requires that in these reasons I identify my assumptions for making an award of damages for future economic loss including the required adjustments. 2. Before the accident the plaintiff was a fit and healthy young man who was not subject to any restrictions in his ability to compete for, gain and sustain, employment on the open labour market. In those circumstances, the plaintiff had at least average intelligence, and was well motivated to find suitable work. But for his injury, he would most probably have sought out physical work commensurate with his physical ability, including within a wide range of potential indoor and outdoor occupations in his locality, if not beyond. That said, at his age and with his unfettered state of health and wellbeing, he also had the unrestricted ability to explore and exploit possibilities for his economic advantage. Those circumstances have changed significantly, to his detriment. 3. As the plaintiff's claim for future economic loss does not involve the projection of a specific continuing loss, it is not necessary to identify those assumptions in any further detail or to identify the adjustments as this component of the plaintiff's claim is best assessed as a "buffer" amount: Penrith City Council v Parks [2004] NSWCA 201, at [55] – [60]. Expert liability evidence from Mr Waddell 1. The plaintiff relied upon the expert liability report of Mr Geoffrey Waddell, a civil engineer. His report was dated 7 November 2014: Exhibit "Z". Mr Waddell identified the extensive materials that were provided to him and he identified the assumptions he was asked to make: Exhibit "Z", pp 4-9. Although he had not carried out an inspection of the premises, he had sufficient information available to him to justify the opinions set out in his report: Exhibit "Z", p 9, par 5.2. His opinions were not the subject of opposing expert opinions. 2. Mr Waddell identified the relevant safety legislation and regulations and other publications, as follows: 1. Occupational Health and Safety Act 2000; 2. Occupational Health and Safety Regulation 2001; 3. National Standard for Construction Work (2005) declared in accordance with s 38 of the National Occupational Health and Safety Commission Act 1985; 4. WorkCover NSW Code of Practice entitled Safe Work on Roofs – Part 2: Residential Buildings, 2005; 5. WorkCover NSW publication entitled Erecting, Altering and Dismantling Scaffolding Part 1: Prefabricated Steel Modular Scaffolding – Industry Safety Standard, August 2008; 6. Australia / New Zealand Standard AS/NZ 1576,1:1995, Scaffolding Part 1 – General Requirements; 7. Australia / New Zealand Standard AS/NZ 4576 : 1995, Guidelines for Scaffolding. 1. Mr Waddell then set out his discussion and analysis between paragraphs 7.1 to 7.87 of his report between pages 27 to 42, excluding paragraphs 7.24, 7.25, 7.43 – 7.51, the tender of which was not pressed: T229.23. 2. In essence, Mr Waddell concluded that on the assumption that the timber planks that bridged the gap between the roof of the house and the scaffolding tower were not secured, the scaffolding would not or should not have passed a safety inspection. He also added that, in any case, the structure should be considered as unsafe, even if the planks had been secured by wire ties: Exhibit "Z", p 30, paragraphs 7.16-7.18. 3. Mr Waddell's report included a necessarily complex multi-scenario analysis because of the factual variations within the materials he was asked to analyse. 4. Mr Waddell made the obvious point that given the presence of the vertical scaffolding component in the bridging space between the roof edge and the scaffold platform, it would not have been possible to place sufficient planking over the bridging space and tie that planking into a secure position: Exhibit "Z", par 7.36. 5. Mr Waddell was of the opinion that allowing the plaintiff to use part of a scaffold that was not properly supported, and which was unsafe, constituted a trap in that the area would have had the appearance of being suitable and safe to walk upon when it was not safe: Exhibit "Z", par 7.52. In submissions, the description of that circumstance being an allurement was adopted: T284.18 – T284.28. 6. Mr Waddell's evidence was that information on the risks of falls from scaffolds and advice on the control of such risks has been widely available to employers, principal contractors and sub-contractors for many years, including information as to measures for injury prevention: Exhibit "Z", par 7.53. 7. Mr Waddell concluded that in his opinion all four defendants had failed to follow relevant and applicable legislation and codes of practice in circumstances where they all had responsibilities to provide and maintain a safe worksite: Exhibit "Z", paragraphs 7.65-7.66. 8. In particular, those safety failures were identified in Mr Waddell's report (at Exhibit "Z", paragraphs 7.67-7.87), as being: 1. Failure by the builder to carry out reasonable inspections on the site where high risk construction work was proceeding, and a related failure to ensure each sub-contractor at the site provided a safe work method statement ("SWMS"); 2. Failure to address with the scaffolders how the fascia contractor was to deal with the area around the scaffolding tower, a matter that should have been the subject of a SWMS; 3. Failure of the builder to direct the scaffolder to barricade access to the tower area since that structure was no longer needed, and since it was known that the tilers would be working in the area; 4. Failure of the builder to adequately monitor the activity of the sub-contractors on the site in circumstances where a high level of oversight of the work was required; 5. Failure of the builder to recognise that the decisions not to salvage existing roof tiles was a relevant change in circumstances that required expert advice as envisaged by clause 5.2 of AS/NZS 4576:1995, which required a changed risk assessment for the site; 6. Failure of the tiling contractor to prepare a suitable SWMS, which if it occurred, would have led to a specific inspection of the roof where work was to be undertaken, and this would have identified the tower platform as being unsafe, which would then have led to a request for the tower to be barricaded from access; 7. Failure to ensure that work in the area did not commence until access to the tower was barricaded; 8. Failure of the fascia contractor to prepare an SWMS, which if prepared, ought to have identified the need to discuss with the builder the matter of safe access to the locations at which he would be working; 9. Failure of the scaffolder to maintain quality in the standard of their work according to AS/NZS 4576:1995 clause 5.1 and by failing to secure the bridging planks so that the planks were not liable to move and fall if walked upon; 10. Failure to ensure that the bridging planks were not left in a precarious, unsecured and hazardous position, a situation which could have been easily remedied if the planks had been secured at both ends. 1. In Mr Waddell's oral evidence, which was given by audio-link (T231 – T247), he adhered to the opinions he had already expressed in his report. The respective counsel for the builder and the employer did not seek to cross-examine Mr Waddell. Therefore, subject to matters of analysis and argument as to the applicability of his opinions, those defendants should be taken to have accepted his opinions as they did not seek to challenge or contradict them. 2. On behalf of the scaffolder, Mr Waddell was cross-examined on limited issues and on the assumptions he had made for the purpose of preparing his report. His evidence confirmed: 1. The opinions he had earlier expressed in his report as to the failures he identified in relation to each of the four defendants: T233.47 – T234.18; 2. That if left unsecured, bridging planks represented a hazard whereby a person stepping on any of the planks could have been injured or killed, and this would have been obvious to anyone in Mr Wright's position, and not just in hindsight: T234.48 – T235.6; 3. Mr Wright's failures were a very substantial contribution to the plaintiff's accident: T235.45 – T235.49; 4. The builder should have taken into account Mr Wright's need for access to the roof and should have been aware of how he was going to proceed: T236.46 – T237.2; 5. Proper harmonious and pro-active site coordination by the builder should have resulted in the building preventing access by the fascia contractor and the tilers at the same time: T237.9 – T237.35; T238.15 – T238.20; T238.34; 6. The scaffolders had directly contributed to the incident by not tying down the planks (T238.45 – T239.16), and that criticism also applied equally to the builder: T239.40 – T239.43; 7. The builder had failed to properly supervise and coordinate the trades on the site: T239.25 – T239.38. 1. On behalf of the fascia contractor, Mr Waddell was also cross-examined on limited issues in which the assumptions he had made were explored. The substance of that cross-examination was directed at differing factual scenarios that affected the degrees to which there should be apportionment as between the respective defendants. His oral evidence in that context was as follows: 1. Even if the bridging planks had been tied down it would have been necessary for them to be checked from time to time to reduce the risk of them becoming dangerous: T243.28 – T243.42; 2. There seemed to have been no logical reason for the scaffolding to have been raised on the site at a time before the fascia and guttering contractor had substantially completed his work, but if all that was left of that fascia and guttering work was a short one and-a-half metre section, the fascia and guttering contractor could have quite easily done that work after the scaffold had been raised: T247.29 – T247,36. 1. Significantly, no party sought to traduce by cross-examination Mr Waddell's primary liability opinions in which he considered all defendants were responsible for the plaintiff's injury. 2. I now turn to a consideration of the issues identified at [10] above as calling for decision. Issue 1 – The relevant risk of harm 1. The first issue requiring consideration in this case is identification of the relevant risk of harm in order to enable a proper consideration of the duty of care owed with regard to averting the true source of injury: Roads and Traffic Authority (NSW) v Dederer (2007) 234 CLR 330; [2007] HCA 42, at [60]; Perisher Blue v Nair Smith [2015] NSWCA 90, at [98]. 2. There is no dispute that the relevant risk of harm in this case was the possibility that persons working on the roof at a height above ground level, being about 6m, could foreseeably fall from either the roof or its surrounding scaffolding, platforms or bridging planks, thereby incurring the prospect of serious bodily injury if those structures were not made safe. Issue 2 – Respective duties of care 1. There can be no dispute that each of the respective defendants owed the plaintiff a relevant duty of care. Those duties varied as between those defendants who were to varying degrees occupiers of the site, and the defendant who employed the plaintiff. Duty of care owed by the occupiers 1. The builder on site, now represented by the first defendant, and the second and third defendants as contractors, were relevant occupiers of the site and they therefore owed a duty of care to persons such as the plaintiff who were foreseeably likely to be lawfully on the premises. However, some allowance must be made for necessary variations in the extent or scope of the respective duties of care owed by the different occupiers of the site. The builder – now represented by the first defendant insurer 1. The duty of a builder on a site where other contractors had a foreseeable work presence has been discussed and considered in a range of authorities. A convenient summary of that consideration and review of authorities appears in Parkview Constructions Pty Ltd v Abrahim [2013] NSWCA 460, at [59]-[67], which is to a significant degree similar to the present case. A builder in occupation of a site owes a duty, to persons coming onto that site, to exercise reasonable care to avoid physical injury to such persons where there is a risk of foreseeable injury from the prevailing conditions on the site and where the builder has an element of control of the happenings or works on the site. 2. That duty arises in the context of the general duty to take reasonable care to prevent injury to persons in the position of the plaintiff, assuming the plaintiff would himself exercise reasonable care for his own safety: Roads and Traffic Authority (NSW) v Dederer (2007) 234 CLR 330; [2007] HCA 42, at [60]. 3. It is of significance to note in this case that the builder's duty of care was not the same as the non-delegable duty owed by the plaintiff's employer. 4. The plaintiff in Parkview Constructions Pty Ltd v Abrahim, also stepped onto a scaffolding plank which, in that case, was not adequately supported. In that case, at [62]-[65] the Court of Appeal made reference to the decision of the High Court in Leighton Contractors Pty Ltd v Fox (2009) 240 CLR 1; [2009] HCA 35, and to another decision of the Court of Appeal in Ilvariy Pty Ltd trading as Craftsman Homes v Sijuk [2011] NSWCA 12. That was a case in which an experienced bricklayer was injured when he fell through a hole in scaffolding on a residential building site, where both the builder and the employer were jointly sued. In that latter case, at [19]-[21] it was stated: "19. ... The appellant was the builder in occupation of the building site, including the scaffolding. I agree that coordination of trades had nothing to do with the accident. The accident was caused by the dangerous state of the scaffolding which bore a reassuring sign that it was safe. The question is whether the appellant, as the builder having possession of the site, owed any duty to tradesmen such as Mr Sijuk to exercise reasonable care to make the site safe for them to work upon. Putting Papatonakis to one side for the moment, none of the cases relied on by the appellant concerned the duty of a builder as occupier of the site to exercise reasonable care in respect of the safety of the site upon which men and women would be invited to work. A building site and scaffolding on a building site can be dangerous places. People work at heights, machines are in use and other dangers exist. As the occupier with possession of the site for the undertaking of its contractual obligations for its own commercial benefit, a builder owes a duty to exercise reasonable care to avoid the exposure of persons coming on to the site to risk of injury from the dangerous condition of the site. In seeking to gainsay the existence of the duty of an occupier, the appellant referred to what Brennan and Dawson JJ said in Papatonakis at 30: "... where an independent contractor carrying on a particular trade is engaged by an occupier to work on his premises, the occupier is not under a duty to give warning of a defect in the premises if tradesmen of that class are accustomed to meeting and safeguarding themselves against defects of that kind." 20. The logical syllogism that the appellant sought to engage from this statement was that since Mr Sijuk should, in the exercise of due care for his own safety, have examined the scaffolding before he began work, any defect that he would have found was a defect in the premises that tradesmen such as Mr Sijuk were accustomed to meeting and safeguarding themselves against. 21. I reject this submission. This way of putting the matter transforms contributory negligence into a complete defence to the claim. It is not a fair application of what Brennan and Dawson JJ were saying. Tradesmen of Mr Sijuk's class are not accustomed to dealing with dangerous scaffolding, especially scaffolding that was said by a sign to be safe. Undoubtedly an occupier, especially a non-technical occupier, is entitled to expect that a tradesman will deal with dangers or defects which his trade skills allow him in the ordinary way to perceive and deal with. That does not mean that a builder is free not to exercise any reasonable care about the safety of the building site of which it has possession. The cases to which Brennan and Dawson JJ referred were: Christmas v General Cleaning Contractors Ltd [1952] 1 KB 141 - window cleaners on the building of a club where the defect in the lower sash was a common recognisable danger of everyday experience to window cleaners against which the window cleaning company should guard; Bates v Parker [1953] 2 QB 231 - window cleaners on a building where it was left to the contractor how to perform the work in circumstances where the occupier was not aware of the particular risk involved in the cleaners' method; Archer v Hall [1967] 1 NSWR 107 - a welder working on defendant's premises threw a metal pole from where he worked fouling power lines below; Wright (WH) Pty Ltd v Cth [1958] VR 318 - a crane driver on occupier's land; Pinborough v Minister of Agriculture (1974) 7 SASR 493 - pest controllers at a cold store falling through the weaker part of a roof, being a hazard commonly encountered by pest controllers in their work." 1. In Leighton Contractors Pty Ltd v Fox (2009) 240 CLR 1; [2009] HCA 35, at [21], a distinction was drawn between the duty owed by a principal occupant, such as the builder to independent contractors, and the non-delegable duty owed by an employer to its employees to ensure, as a more stringent obligation, that reasonable care should be taken. That latter duty was more onerous than the lesser duty on an occupier to take reasonable care to avoid a foreseeable risk of injury to a person such as an occupant. 2. Nevertheless, in Parkview Constructions Pty Ltd v Abrahim, at [66], it was emphasised that a builder in occupation of a site owes a duty to persons coming onto the site to avoid physical injury to them where that risk is foreseeable: Stevens v Brodribb Sawmilling Company Pty Ltd (1986) 160 CLR 16; [1986] HCA 1, at [48] and Miljus v Watpow Constructions Pty Ltd (2012) 82 NSWLR 572; [2012] NSWCA 96, at [72]. 3. In the present case, on behalf of the builder's insurer, QBE Insurance (Australia) Limited, it was submitted that the builder's duty was properly delegable and delegated to the scaffolding and fascia contractors: Exhibit "D1.2". It was consequently submitted that the principles discussed in Bevillesta Pty Limited v Liberty International Insurance Co [2009] NSWCA 16 applied. Relevantly, in that case, at [52], [53], it was stated: "52 There is no doubt that Bevillesta as owner and occupier of the shopping centre owed a duty of care to the plaintiff. 53 There is no doubt also that this occupier's duty of care is "delegable", in the sense that it may be discharged in whole or in part by the occupier's exercise of reasonable skill and care in engaging someone else to take steps to keep the property safe either generally or in particular respects. Discharge of the duty in this way requires reasonable skill and care in the selection of the other person, in arranging the terms of engagement of that person, and in confirming that the person does take appropriate steps. If it is reasonable for an occupier to seek to discharge or partly discharge the occupier's duty in this way, and the occupier does exercise reasonable skill and care in all these respects, then if a person coming on to the property is injured due to the failure of the other person engaged to exercise reasonable skill and care to keep the property safe, the occupier may escape liability." 1. That approach has been followed in other cases: Jones Lang LaSalle (NSW) Pty Ltd v Taouk [2012] NSWCA 342, at [35]; Indigo Mist Pty Limited v Palmer [2012] NSWCA 239, at [7]; Condos v Clycut Pty Limited [2009] NSWCA 200, at [62]; Fabre v Lui [2015] NSWCA 157, at [25]. 2. However, as was stated in Parkview Constructions Pty Ltd v Abrahim, at [67], the builder was the principal of the project and the occupier of the site. As such the builder owed a duty to the plaintiff to exercise reasonable care to prevent him from sustaining injury by reason of dangers on the site. That duty was not to ensure his safety. Instead, the requirement was limited to exercising reasonable care to prevent the plaintiff and other persons working on the site from being injured: Roads and Traffic Authority (NSW) v Dederer (2007) 234 CLR 330; [2007] HCA 42, at [43]. 3. In the present case, the first defendant submitted on behalf of the insurer of the builder, that the facts of the present case "are in some way analogous" to those in Leighton Contractors Pty Ltd v Fox (2009) 240 CLR 1; [2009] HCA 35, at [43], [48]. It was said that was so because the plaintiff's accident in the present case occurred through the negligent conduct of co-subcontractors. In respect of those circumstances, citing paragraph [48] of that authority, the first defendant submitted: "47. At [48] the High Court stated: "It may be accepted that Leighton as the occupier of the site, owed a duty to persons coming onto it to use reasonable care to avoid physical injury to them. However, this says nothing about whether Leighton owed a duty of care to Mr Fox to take reasonable care to prevent him from suffering injury on the site as a result of the negligent conduct of Mr Stewart. The relationship between principal independent contractor is not one which, of itself gives rise to a common law duty of care, much less to a special duty resting on employers to ensure that care is taken ..."." 1. The first defendant's submissions, coincidentally also at paragraph 48, went on to assert: "48. It follows that the first defendant had no duty to the plaintiff to train or otherwise supervise employees of Burtwin including the plaintiff. The first defendant also has no duty to ensure that HTE and Wright carried out their work competently beyond any negligence that was plainly observable within the narrow window available to J Petty to make and act upon such an observation." 1. I do not fully accept that submission as it fails to address the undoubted duty of the first defendant builder to supervise building activity on the site, particularly the coordination of the various trades that had a foreseeable presence on the site. 2. The determination of the respective degrees of responsibility as between the relevant actors will necessarily be influenced by questions of control. The scaffolding and the fascia contractors 1. As co-occupiers of the site the scaffolding contractor and the fascia contractor also owed a duty to the plaintiff along the lines referred to in [146] above. This was also in accordance with the general duty of care owed by an occupier of premises to take reasonable care to avoid injury to other persons, or in this case, workers, lawfully on the site: Caltex Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 258, at [102]-[104], [182]-[185]. 2. The context of the respective duties owed by the scaffolding and fascia contractors as occupiers was in relation to the physical state of the premises over which those defendants had knowledge and control: Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254; [2000] HCA 61, at [13], [18]; Roads and Traffic Authority (NSW) v Dederer (2007) 234 CLR 330; [2007] HCA 42, at [45]. That duty was to take reasonable care on the supposition that, for his part, the plaintiff would also take reasonable care for his own safety: Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479; [1987] HCA 7, at p 488. 3. Questions as to the degree of control over the premises need to be considered: Laresu Pty Ltd v Clark [2010] NSWCA 180, at [82]-[83], following Bevillesta Pty Ltd v Liberty International Insurance Co [2009] NSWCA 16, at [54]. 4. The consideration of the appropriate divisions of responsibility between defendants stands to be determined by the matter of control: Stevens v Brodribb Sawmilling Company Pty Ltd (1986) 160 CLR 16; [1986] HCA 1, at [47]-[48]. That will require closer consideration in connection with any apportionment to be achieved as between the respective defendants. Duty owed by plaintiff's employer 1. The fourth defendant, as the plaintiff's employer, had a non-delegable duty to take reasonable care to avoid exposing its employees to unnecessary risks of injury: Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18; [1956] HCA 42, at p 25. 2. If the risk of injury was apparent, the employer was duty bound to take reasonable care to avoid the risk by devising a method of operation for performance of the required tasks by either eliminating the risk or providing adequate safeguards: Smith v Broken Hill Pty Co Ltd (1957) 97 CLR 337; [1957] HCA 34, at p 342. 3. The duty on the employer had to take into account the possibility of thoughtlessness, or inadvertence, or carelessness on the part of the employee, particularly in a case of repetitive work: Czatyrko v Edith Cowan University (2005) 214 ALR 349; [2005] HCA 14, at [12]-[13], following a line of well settled authorities there cited. Issue 3 – Alleged breaches of duty of care 1. The question of whether any of the first, second or third defendants were negligent must be determined in accordance with s 5B and s 5C of the CL Act. For analysis and convenience, I will first consider the claims of negligence against the first, second and third defendants. 2. The question of whether the fourth defendant employer was negligent will then follow. In contrast the position of the first, second and third defendants, and the analysis of that question must be determined according to common law principles: Wyong Shire Council v Shirt (1980) 146 CLR 40; [1980] HCA 12. 3. Section 5B of the CL Act provides: 5B General principles (1) A person is not negligent in failing to take precautions against a risk of harm unless: (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person's position would have taken those precautions. (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things): (a) the probability that the harm would occur if care were not taken, (b) the likely seriousness of the harm, (c) the burden of taking precautions to avoid the risk of harm, (d) the social utility of the activity that creates the risk of harm. 1. Section 5C of the CL Act provides: 5C Other principles In proceedings relating to liability for negligence: (a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and (b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and (c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk. 1. In the case of the first, second and third defendants, to obtain a finding of negligence against those defendants, the plaintiff must first satisfy the three pre-conditions provided by s 5B(1)(a) to (c) and then the requirements of s 5B(2) of the CL Act. Consideration of whether first defendant was negligent 1. The plaintiff's amended statement of claim pleads the following allegations of negligence against the first defendant in relation to the acts neglects and details of the head contractor, JS Petty Pty Ltd: 1. Failed to inspect or adequately inspect the scaffolding and planking; 2. Failed to ensure that the planking was properly secured; 3. Allowed the plaintiff to walk on the planking when it knew or should have known that it was dangerous to do so; 4. Failed to observe that the plaintiff was in a position of peril in the circumstances; 5. Failed to warn the plaintiff that the planking was unsecured; 6. Failed, by allowing the third defendant to work on site at the same time as the fourth defendant's team of workers, to supervise and coordinate activities on the site in a safe manner; 7. Failed to realise that there was a real risk (if not an inevitability) that the third defendant might move or otherwise interfere with the bridge/deck planking of the existing scaffolding tower in order to carry out his work; 8. Failed to carry out an immediate and thorough inspection of the scaffolding after the third defendant had substantially completed his work or when he realised that the third defendant had returned to the site on the morning of 18 September 2008 to continue or complete his work; 9. Failed to fence, barricade or otherwise prevent access to the bridge leading from the roof edge to the deck of the tower. 1. Those allegations may be conveniently summarised as failures that centre around matters of site supervision, coordination of trades, ensuring safe access, or barricading of areas of potential danger in relation to the risk of falling. 2. The starting point of the consideration of whether the first defendant was negligent requires an examination of the evidence in terms of the three pre-conditions that are identified in s 5B(1) of the CL Act. Section 5B(1) considerations – first defendant 1. I find that from the perspective of the builder it was foreseeable that any person working at a height on the site, particularly on the roof in juxtaposition to the scaffolding platform, might, in the absence of the implementation of prudent precautions and the provision of barriers, fall to the ground. The plaintiff has therefore satisfied the first pre-condition for a negligence finding to be made against the builder: s 5B(1)(a) of the CL Act. 2. I find that from the builder's perspective the risk of injury from a fall from the roof or scaffolding platform was not insignificant. Given the height of the works, about 6 metres from ground level, there was a significantly high prospect that the identified risk of harm could materialise if reasonable precautions against the risk were not taken and implemented. The plaintiff has therefore satisfied the second pre-condition for a negligence finding to be made against the builder: s 5B(1)(b) of the CL Act. 3. In my view, from the builder's perspective there are no rational arguments against the taking of reasonable precautions against the identified risk of harm as was identified in the evidence of Mr Waddell as reviewed at [126] to [139] above. The builder was in charge of the site and was responsible for the coordination of the sub-contractors and the work of the different trades who had a presence on the site. 4. As the head contractor in charge, the builder must be taken to have known that an available scaffold platform was likely to be used as a means of access to the roof area by tile workers stripping the roof of redundant tiles. Similarly, the builder must have known that the bridging planks provided as a means of access between the roof and the scaffolding platform would be moved or otherwise interfered with by the fascia contractor for him to gain access to the area of his works. That much was evident from the juxtaposition of the scaffolding bridge and the edge of the roof. 5. As the head contractor, the builder should be taken to have known that which the scaffolding contractor knew, namely, that "if people want to pull the scaffold apart they will": Exhibit "M", Q 537. That required the taking of reasonable precautions. 6. Notwithstanding those circumstances, Mr JS Petty, as the responsible builder, took no steps to carry out an inspection "from the top" in the area of the works, as he had done with regard to inspection at the rear of the site, where he thought the tilers would be walking: Exhibit "M", Q 265 and following: Q289; Q311 – Q312. 7. The plaintiff submitted, correctly in my view, that Mr JS Petty knew the tilers would be working on the roof near the scaffolding tower at the front of the building. In fact Mr JS Petty was standing near the scaffolding platform at the time when the plaintiff fell. In those circumstances, beforehand, he should have carried out a prudent inspection of the scaffolding platform and its component structural parts, particularly the parts that would be used for walking access by workers on the site whilst carrying a variety of building materials and tools. That inspection should have been at the top and not just from ground level. 8. I accept the plaintiff's submission that had Mr JS Petty undertaken a proper inspection of the deck of the platform from the upper level he would have recognised the planks to be in an unsecured state. A simple observational inspection would have revealed that problem to him. The obvious precautions to be taken in those circumstances would have been simply to require the scaffolder to remedy the problem by applying proper methods of securing or fixing the planks, and in the meantime, to take steps to ensure that access to that area by other workers should be restricted. 9. Those submissions, which I accept, were soundly based on the un-contradicted opinions of Mr Waddell. I therefore find that the plaintiff has therefore satisfied the third pre-condition for a negligence finding to be made against the builder: s 5B(1)(c) of the CL Act. 10. Those findings lead to a consideration of the requirements of s 5B(2) of the CL Act with regard to the builder. That consideration now follows. Section 5B(2) considerations – first defendant 1. If the precautions identified by Mr Waddell were not taken, then on a prospective view, it is plainly apparent that there was a high probability of a worker coming to harm on site if access to the unsecured bridging planks was attempted. The likelihood of such access was high in the absence of the area being closed off from access by physical means, and by the provision of warning signs: s 5B(2)(a) of the CL Act. 2. If someone were to fall from the bridging planks to the concrete on the ground below, there was a high risk of serious bodily injury or death in such an event: s 5B(2)(b) of the CL Act. 3. In my view, accepting Mr Waddell's evidence, in the circumstances, the burden on the builder in taking precautions against the risk of harm was not an unduly burdensome task. 4. At the very least, irrespective of the nature of the burden, the applicable regulatory and safety codes and standards should have been complied with as an ordinary feature of the builder undertaking such works. In the context of the works on site, the precautionary steps of inspection, barricading, isolating, roping off and posting warnings, and using tie wires to secure the bridging planks, involved comparatively little time, effort and cost: s 5B(2)(c) of the CL Act. 5. The activity of carrying out building work on a commercial basis involved social activity of significant utility. There was no social utility in carrying out such work without proper regard to commonplace, applicable, and readily observable safety standards: s 5B(2)(d) of the CL Act. 6. In view of the foregoing analysis, I find that the first defendant builder was in breach of the duty of care owed to the plaintiff, and was therefore negligent in the manner alleged by the plaintiff. 7. I now turn to a consideration of the plaintiff's claim that the second defendant was negligent. Consideration of whether second defendant was negligent 1. The plaintiff's amended statement of claim pleads the following allegations of negligence against the second defendant scaffolder: 1. Failed to inspect or adequately inspect the scaffolding and planking; 2. Failed to ensure that the planking was properly secured; 3. Allowed the plaintiff to walk on the planking when it knew or should have known that it was dangerous to do so; 4. Failed to observe that the plaintiff was in a position of peril in the circumstances; 5. Failed to warn the plaintiff that the planking was unsecured; 6. Failed to warn the plaintiff that the planking was likely to move. 1. Essentially, those allegations may be conveniently summarised as being failures to inspect and secure the area of scaffolding works that provided bridging plank access to the scaffold platform, and a failure to warn other contractors and their workers in relation to the unsafe and unsecured areas comprising the bridging planks to that platform. The evaluation of the claim that the second defendant scaffolder was negligent must also proceed according to the statutory sequence required by s 5B of the CL Act as identified at [171] – [190] above. Section 5B(1) considerations – second defendant 1. From the perspective of the second defendant scaffolder, as with the builder, as analysed at [173] above, it was also foreseeable that any person working at a height near the roof might fall to the ground if reasonable care was not taken with regard to the apparently accessible bridging planks: s 5B(1)(a) of the CL Act. 2. From the perspective of the second defendant scaffolder, as with the builder, as analysed at [174] above, the identified risk of harm from a person falling to the ground could materialise in a "not insignificant way" absent the taking of reasonable precautions against that risk: s 5B(1)(b) of the CL Act. 3. From the perspective of the second defendant scaffolder, as with the builder, as analysed at [175] above, in the context of the scaffolder's role on the site where the scaffolding tower and bridging planks would be left in juxtaposition to the roof where roofing work was being undertaken, where it was reasonably foreseeable that the tiling team could use the scaffolding platform and the bridging planks as access to that platform, the need to take precautions against the risk of someone accessing and falling from those planks necessarily arose for prudent consideration in the interests of safety. Those precautions included the need for proper inspection of the area and a risk evaluation, liaising with the builder for appropriate coordination of the works, securing the planks, or alternatively, preventing access to the planks, including by barricades, roping off, and by appropriately worded warning signage: s 5B(1)(c) of the CL Act. 4. Those findings lead to a consideration of the requirements of s 5B(2) of the CL Act with regard to the scaffolder. That consideration now follows. Section 5B(2) considerations – second defendant 1. As with the builder, if the scaffolder had not taken the precautions identified by Mr Waddell, there was plainly an apparent and prospectively high probability that a worker accessing the unsecured bridging planks could come to harm from falling where the bridging planks remained accessible without restriction: s 5B(2)(a) of the CL Act. 2. This was in circumstances that it should have been plainly apparent to the second defendant scaffolder that if someone fell from those bridging planks, there was a high risk of serious bodily injury or death from such a fall: s 5B(2)(b) of the CL Act. 3. As with the builder, and accepting the evidence of Mr Waddell as I do, I consider that the likely burden on the second defendant scaffolder in taking precautions against the risk of harm was not unduly burdensome. The scaffolder must be taken to have known of the applicable regulatory and safety codes which were identified by Mr Waddell as being applicable to the scaffolding work, and he should have complied with those codes when carrying out that work on the site. This would have required a final inspection, tying down the bridging planks, and informing the builder of the performance or non-performance of those actions, which involved negligible time, cost and inconvenience: s 5B(2)(c) of the CL Act. 4. As with the builder, the carrying out of scaffolding work on a residential building site was an activity of social utility. There was no social utility in carrying out such work without proper regard to commonplace and readily observable safety standards s 5B(2)(d) of the CL Act. 5. In view of the foregoing analysis, I find that the second defendant scaffolder was in breach of the duty of care owed to the plaintiff, and was therefore negligent in the manner alleged by the plaintiff. 6. I now turn to a consideration of the plaintiff's claim that the third defendant was negligent. Consideration of whether third defendant was negligent 1. The plaintiff's amended statement of claim pleads the following allegations of negligence against the third defendant fascia and guttering contractor: 1. Removed the wires securing the timber planks in position; 2. Moved the timber planks (after removing the wires securing them) later returning them to their former position but unsecured; 3. Failed to rope off, barricade or otherwise prevent access to the bridge leading from the roof to the deck of the tower; 4. Failed to warn the builder (or anyone working at the residence) that the timber planks had been interfered with and were not secured. 1. Those allegations may be conveniently summarised as a failure to restore and secure the bridging planks after moving them to obtain access to the roof gutter, and failure to warn of the resultant danger posed by the moved planks. 2. The evaluation of the claim that the third defendant fascia and guttering contractor was negligent must also proceed according to the statutory sequence required by s 5B(1) of the CL Act as identified at [171] to [190] above. Section 5B(1) – considerations – third defendant 1. From the perspective of the third defendant fascia and guttering contractor, as with the builder and the scaffolder, it was also foreseeable that any person working at a height near the roof might fall to the ground if reasonable care was not taken concerning the state in which the bridging planks were left: s 5B(1)(a) of the CL Act. 2. From the perspective of the third defendant fascia and guttering contractor, as with the builder and the scaffolder, the identified risk of harm from a person falling to the ground could materialise in a "non insignificant" way if reasonable precautions were not taken against that risk: s 5B(1)(b) of the CL Act. 3. From the perspective of the third defendant fascia and guttering contractor, as with the builder and the scaffolder, in the context of the fascia and guttering contractor's role on the site where he would be moving the bridging planks and leaving them in an unsecured state without taking the precaution of informing other contractors, especially the head contractor builder of that fact, gave rise to a risk of harm that could have been avoided by the taking of such precautions. This was particularly so because the bridging planks that Mr Wright moved were not his, they were not erected or located for him, and he ought to have let the builder know what he had done in relation to those planks: s 5B(1)(c) of the CL Act. 4. Those findings lead to a consideration of the requirements of s 5B(2) of the CL Act with regard to the fascia and guttering contractor. That consideration now follows. Section 5B(2) – considerations – third defendant 1. As with the builder and the scaffolder, the guttering and fascia contractor ought to have known that an alteration to the juxtaposition of the components comprising the bridging planks on any above ground structure on the site carried with it the prospectively high probability that a worker accessing the unsecured and altered configuration of those planks could come to harm from falling a considerable distance to the ground: s 5B(2)(a) of the CL Act. 2. In the described circumstances, the fascia and guttering contractor, also working at a considerable height above the ground, ought to have known that a worker on site falling to the ground below would be at a high risk of incurring serious bodily injury, if not death: s 5B(2)(b) of the CL Act. 3. Accepting Mr Waddell's evidence as I do, it ought to have been plainly apparent to the fascia and guttering contractor that the bridging planks, whilst still in situ, could have foreseeably had some purpose that was integral to the work of other contractors on the site. In those circumstances, taking the precaution of seeking out a prior discussion with the builder at the very least, if not also with the scaffolders and the tilers, before moving those planks, was not unduly burdensome. Similarly, it would not have been unduly burdensome for the fascia and guttering contractor to have informed the builder, if not other contractors, after having moved the planks so that the safety significance of his actions could have been considered by relevant persons to determine whether this had impacted on how they should discharge their duty of care form that point: s 5B(2)(c) of the CL Act. 4. As with the builder and the scaffolding contractor, the actions of the fascia and guttering contractor which had the effect of altering the safety dynamics on the site, without taking consequential and necessary safety precautions, and thereby creating a danger for other workers on the site, was of no social utility: s 5B(2)(d) of the CL Act. 5. In view of the foregoing analysis, I find that the third defendant fascia and guttering contractor was in breach of the duty of care owed to the plaintiff, and was therefore negligent in the manner alleged by the plaintiff. 6. I now turn to a consideration of the plaintiff's claim that the fourth defendant was negligent. Consideration of whether fourth defendant was negligent 1. The plaintiff's amended statement of claim pleads the following allegations of negligence against the fourth defendant tiling contractor and employer of the plaintiff: 1. Failing to carry out before the commencement of the work any inspection of the scaffold deck and bridge as to ensure that the timber planks thereof were secure and the area safe for employees to walk; 2. Failing to warn the plaintiff that the scaffolding deck and bridge had not been inspected; 3. In allowing the plaintiff to use the bridge and deck when they should have known that it was unsafe to do so; 4. Failing to ensure that access to the deck and bridge was prevented by a barrier, fence or usual warning sign; 5. Failing to ensure that the plaintiff was appropriately warned (having regard to his age and experience) that he should not use the scaffold deck and bridge; 6. Failing to adequately supervise the performance of the work; 7. Failing to warn the plaintiff that the timber planks of the scaffold deck and bridge were not secured and, accordingly, were unsafe to walk on. 1. Those allegations may be conveniently and relevantly summarised as being failures to inspect, to ensure safe access, to supervise the plaintiff, and failure to warn the plaintiff of danger due to the existence of unsafe and unsecured walkway access to the scaffolding platform. 2. An employer owes a non-delegable common law duty of care to employees to take reasonable care to avoid exposing them to unnecessary risks of harm from injury. Czatyrko v Edith Cowan University [2005] HCA 14; (2005) 214 ALR 349, at [12]; Schellenberg v Tunnel Holdings Pty Ltd [2000] HCA 18; (2000) 200 CLR 121, at [101]; TNT Australia Pty Ltd v Christie [2003] NSWCA 47. 3. The employer's liability in negligence stands to be assessed prospectively according to conventional common law principles, which distil into the question of whether a reasonable employer in the position of the fourth defendant would have foreseen that the system of work or work tasks required of the plaintiff involved a risk of injury to him. 4. If the answer to that question is in the affirmative, then the next question for determination is what a reasonable employer in the position of the fourth defendant would have done in response to the risk, balanced commensurately with the magnitude of the risk, the degree of probability of its occurrence, and the expense, difficulty and inconvenience of taking alleviating action against such risks: In Wyong Shire Council v Shirt (1980) 146 CLR 40; [1980] HCA 12, at [15]. 5. If there is real risk of an injury to an employee in the performance of a task in the workplace, the employer must take reasonable care to avoid the risk by devising a method of work that eliminates the risk, or if that is not foreseeable, then the provision of adequate safeguards: Hamilton v Nu-Roof (WA) Pty Ltd [1956] HCA 34; (1956) 97 CLR 18, at 25. In devising such methods of work, the employer must take into account the possibility of fallible thoughtlessness, inadvertence, or carelessness on the part of the employee: Smith v The Broken Hill Co Pty Ltd [1957] HCA 34: (1957) 97 CLR at 337; at 342. 6. For the plaintiff's employer Burtwin to have discharged its duty of care to the plaintiff, at the very least, Mr Burt should have made an assessment of how the plaintiff could safely dispose of tiles whilst at roof level. That assessment ought to have recognised that the plaintiff would be working at the lower edge of the second storey roof without guardrails, safety harness or safety netting. On any reasonable inspection of the area, this ought to have immediately suggested to the observer, and to the employer, that there was a foreseeably real and significant risk of the plaintiff falling from the roof whilst carrying out his allotted tasks. 7. It was plainly foreseeable that if the plaintiff was, in the course of his assigned work, to approach the roof edge to drop tiles into a skip bin below, this accentuated the risk of a fall. 8. The employer, an established and experienced roofing contractor, ought to have foreseen that the skip bin located immediately below the roof edge would at some stage of the work become filled, so as to require replacement or access to an alternative skip bin to receive the remaining volume of tiles to be discarded. 9. In my view, a reasonable employer in the position of Burtwin acting reasonably, having inspected the area where the plaintiff was likely to seek access for the purpose of dropping tiles into skip bins below, ought to have foreseen that, in the interests of safety and work efficiency on site, the plaintiff would seek easy, available and convenient access to the scaffolding platform. It was plain that he was likely to do so by walking on the bridging planks so that he could then drop significant quantities of tiles into an available skip bin below. This was especially obvious where the first skip bin, namely that closest to the line of the roof edge, was not of sufficient volume or capacity to receive all of the tiles the plaintiff would be likely or required to handle for disposal. 10. In my view, a reasonable employer in Mr Burt's position, acting reasonably when considering the safety and wellbeing of his employees on that site, would have inspected the safety of the bridging planks given the height at which the work was to be undertaken and given the nature of the work which carried with it a significant risk of a fall from that height, especially when carrying bulky if not heavy objects such as multiple tiles. 11. The magnitude of the risk and the probability of a fall was sufficient to require precautions being taken by the employer. The inconvenience and the expense of taking relevant precautions, here being an inspection and giving safety instructions to the plaintiff, and ensuring the planks were safe and secure, was a negligible burden in the circumstances. 12. In my assessment, the employer's lack of knowledge of deficiencies in the scaffolding and related structures, taken in conjunction with the indisputable existence of the employer's non-delegable duty to exercise reasonable care in relation to the risk of injury to employees in the workplace, amounted to a negligent breach of the duty of care owed in this case. 13. If Mr Burt had in fact inspected the scaffolding it appears from his answers in a second interview, his admitted lack of knowledge about scaffolding, which is surprising given he is a tiling contractor, that he may well not have recognised the dangerous state of the bridging planks. Furthermore, it appears little thought or advice on the part of the employer had been applied to the method by which tiles would be removed from the roof, a task for which he was responsible. 14. This was in circumstances where the plaintiff's only prior experience of working at a similar height involved a perimeter scaffold and an associated walking platform, and where on the day of his accident, he received no specific instructions on how to dispose of the redundant tiles and no warning about using the bridging planks to gain access to the scaffolding platform to enable him to drop tiles into the skip bin below. 15. Whilst Mr Lavis said he saw nothing glaringly defective about the arrangement of the bridging timbers, and therefore had no reason to alert Mr Burt as to the state of those timbers (T78.20 – T78.49; T79.1 – T79.34) that is no answer to the plaintiff's claim, as Mr Lavis had not been trained in the task of safety assessment, which was the role and the responsibility of his employer. 16. I therefore find that the fourth defendant, Burtwin, was negligent. The causative potency of that negligence and its proportionality to the liability of the other defendants remain as issues to be determined. Issue 4 – Alleged contributory negligence 1. The question of whether there was contributory negligence on the part of the plaintiff must be determined in accordance with the requirements of s 5B of the CL Act as well as in accordance with s 5R and s 5S of that Act. The respective defendants bear the onus of establishing contributory negligence: s 5D and s 5E of the CL Act. 2. The plaintiff had not observed a gap in the bridging planks: T50.45 – T50.50; T51.1 – T51.32. He was not able to detect a safety deficiency in the planks: T52.5 – T52.30. He could not recall receiving any warnings about such matters: T56.35 – T56.48; T57.4 – T57.9. 3. On behalf of the plaintiff, in light of his evidence on this topic, it was submitted that by carrying a few tiles by hand, in front of him, this could impair his forward vision: T53.40. It was further submitted that no better alternative work method was identified, and no further cross-examination was directed to the issue of contributory negligence. It is therefore necessary to evaluate whether the defendants have discharged the onus they bear on this issue. 4. Section 5R of the CL Act provides: 5R Standard of contributory negligence (1) The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm. (2) For that purpose: (a) the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and (b) the matter is to be determined on the basis of what that person knew or ought to have known at the time. 1. Section 5S of the CL Act provides: 5S Contributory negligence can defeat claim In determining the extent of a reduction in damages by reason of contributory negligence, a court may determine a reduction of 100% if the court thinks it just and equitable to do so, with the result that the claim for damages is defeated. Contributory negligence alleged by first defendant 1. The first defendant pleaded the following particulars of contributory negligence against the plaintiff: 1. Failing to keep any or any proper lookout; 2. Failure to pay sufficient attention to his immediate environment; 3. Failure to take any, or any reasonable care, for his own safety; 4. Failure to watch where he was placing her (sic for his) feet; 5. Failure to work with appropriate caution; 6. Failure to take any reasonable precautions. Contributory negligence alleged by second defendant 1. The second defendant pleaded the following particulars of contributory negligence against the plaintiff: 1. Failed to take any proper care for his own safety; 2. Failed to keep any or any proper lookout; 3. Failed to heed the warnings and directions of others not to access or use the platform or timber planks; 4. Failed to obtain instructions, or proper instructions, for the safe performance of his duties; and 5. Failed to observe that the bridging timber planks of the deck of the scaffold tower were missing, unsecured and/or pushed back. Contributory negligence alleged by third defendant 1. The third defendant pleaded the following particulars of contributory negligence against the plaintiff: 1. Failing to take care for his own safety; 2. Failing to maintain a proper lookout; 3. Failing to undertake an adequate inspection of the scaffold bridge before walking on it; 4. Failing to follow instruction and training. Contributory negligence alleged by fourth defendant 1. The fourth defendant pleaded the following particulars of contributory negligence against the plaintiff: 1. Failing to keep a proper lookout; 2. Failing to take proper precautions in all of the circumstances for his own safety; 3. Being inattentive; 4. Failing to observe that the timber planks were not properly affixed and to avoid the danger created thereby; 5. Failing to perform the particular task in accordance with the system of work set in place by the fourth defendant. 1. In final submissions, the fourth defendant did not seek a contributory negligence finding against the plaintiff. Essence of contributory negligence allegations 1. In essence, the allegations the defendants make against the plaintiff relate to various iterations of a failure to exercise reasonable care by taking precautions, including by keeping a proper lookout for his own safety, and a failure to heed warnings and directions as to safe access to the timber planks on the scaffolding platform. 2. For the purpose of analysis it is convenient to consider those allegations in two categories, that is, those alleged by the employer, and those alleged by the non-employer occupiers of the site. Consideration of contributory negligence allegations 1. In final submissions the first defendant builder conceded that as the plaintiff was reliant on the skills of his employer, if there were to be any findings of contributory negligence this should only be to a minor degree. The second defendant scaffolder no longer pressed the issue of contributory negligence. The third defendant fascia and guttering contractor submitted there was a basis for a finding of contributory negligence but it would be difficult to see the basis for any significant finding of contributory negligence in excess of 10 to 15 per cent. The fourth defendant employer did not actively maintain the claim of contributory negligence. 2. In relation to the plaintiff's claim of primary liability against his employer, it is important to bear in mind that the employer's non-delegable duty of care owed to the plaintiff was not adequately discharged by delegating to the untrained and unskilled plaintiff, the task of analysing questions of risk, and devising and implementing reasonable precautions against risk: Czatyrko v Edith Cowan University (2005) 214 ALR 349; [2005] HCA 14. 3. In my assessment, the allegations of contributory negligence raised by the employer in sub-paragraphs (4) and (5) of [240] above, if relied upon by the other defendants, can be disregarded for two substantive reasons, as follows. 4. First, no-one was called by the fourth defendant employer to give evidence of the detail of the system of work that had been set for the plaintiff, and similarly no such evidence was given as to what if any safety instructions were given to the plaintiff as to the manner in which he was required to implement or to adhere to that system. Secondly, there is no evidence that the plaintiff knew or ought to have known that the bridging planks had not been properly secured or affixed. That latter enquiry was one for the plaintiff's employer to pursue before directing the plaintiff to carry out his work at the height above the ground, including a position from where he could drop tiles and pieces of tiles into skip bins below. 5. In determining whether the remaining pleaded contributory negligence allegations raised by the fourth defendant have substance insofar as they may be relied upon by the other defendants, it is important to recognise that the plaintiff fell into the void that was created by the collapse of those unsecured planks. There is no evidence from which to fairly infer or find that he should have foreseen that possibility from the appearance or the juxtaposition of those bridging planks in relation to the scaffolding platform, and from the structures of the roof where one end of the planks had been resting. 6. The plaintiff was able to see the walking planks and a platform that he could use to enable him to carry roof tiles and pieces of tiles to deposit them into the skip bins below. That view was limited to a degree because he was holding and carrying loose tiles and pieces of tiles. As an unskilled worker new on the site, he had no knowledge or means of acquiring knowledge of the safety issues posed by reason of the planks being unsecured or tied down. 7. I therefore reject the claim of contributory negligence based on the fourth defendant employer's pleadings. 8. As the second defendant scaffolder no longer presses the plea of contributory negligence, it remains to analyse the contributory negligence claims against the plaintiff as argued by the first defendant builder and the third defendant fascia and guttering contractor. 9. The essence of those remaining claims relates to allegations about keeping a proper lookout and the taking of precautions. 10. In my view, the only precaution the plaintiff could reasonably have taken in the circumstances of the work as allocated to him was to exercise his common sense and to keep a safe foothold and watch to see that he was walking on walkable surfaces. A handhold was not possible because his work required him to carry tiles in both arms. 11. The appearance of the bridging and scaffolding planks, by their size and position or placement, obviously indicated they were intended to be stood upon and walked upon by workers on the site. They were not roped off from access. Having been allocated to work on the roof, and without specific instruction to the contrary, the plaintiff was entitled to assume that the structures had been inspected by his employer, if not by the other contractors who were engaged in work in that proximity. 12. In my assessment, having regard to the requirements of s 5B of the CL Act, the first, second and third defendants have not discharged the burden of establishing contributory negligence on the part of the plaintiff. Conclusion as to alleged contributory negligence 1. For the above reasons, I have therefore concluded that each of the defendants has failed to prove the claims that there had been contributory negligence on the part of the plaintiff. 2. I now turn to my consideration of the issue of causation of loss. Issue 5 – Causation 1. The question of whether the plaintiff's injuries were relevantly caused by the negligence of the respective defendants must be determined according to the requirements of s 5D of the CL Act, which provides: 5D General principles (1) A determination that negligence caused particular harm comprises the following elements: (a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and (b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (scope of liability). (2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party. (3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent: (a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and (b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest. (4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party. 1. The factual findings in this case of the successive failures of each defendant to observe and to discharge their duties of care indicates this is a case where there was a presence of more than one set of conditions necessary for the occurrence of the plaintiff's injury: Strong v Woolworths Ltd (2012) 246 CLR 182; [2012] HCA 5, at [20], apply s 5D(1)(a) of the CL Act. 2. Where such separate conditions are shown to exist, factual causation, the first step in a s 5D analysis of causation, must be demonstrated in relation to each nominated defendant for the liability of each defendant for damages to be established: State of New South Wales v Mikhael [2012] NSWCA 338, at [96]. 3. In my assessment, in undertaking the causation analysis permitted by Vairy v Wyong Shire Council (2005) 223 CLR 442; [2005] HCA 62, at [124], on the balance of probabilities, the irresistible conclusion is that, were it not for the negligence of the respective defendants, the bridging planks to the scaffolding platform would not have been left in an unsecured state, those planks would not have collapsed and fallen away when the plaintiff placed his weight upon them, and therefore, but for those circumstances, the plaintiff would not have fallen from the roof and sustained his injuries: Strong v Woolworths Ltd (2012) 246 CLR 182; [2012] HCA 5, at [32]; Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem (2009) 238 CLR 420; [2009] HCA 48, at [53]. 4. The separate elements relative to each of the defendants and which satisfy the requirements of s 5D(1)(a) of the CL Act are: 1. The failure of the builder to conduct a relevant inspection, and the related failure to arrange safe coordination of the works of the multiple trades on site, allowed the unsecured and inviting bridging planks to be left in that state for foreseeable but unsafe use; 2. The failure of the scaffolding contractor to secure the planks allowed those unsafe conditions to continue so that employees within other trades on site would foreseeably make use of the bridging planks; 3. The failure of the fascia and guttering contractor to inform the builder and other contractors that he had moved the bridging planks and left them unsecured allowed the unsafe condition of those bridging planks to remain in that unsafe state: 4. The failure of the plaintiff's employer to undertake an inspection from an appropriate height before requiring the plaintiff to work at roof level also primed the scene for the occurrence of an accident of the kind incurred by the plaintiff; 5. The confluent failure of all of those three defendants to isolate, barricade, place warning signs and advise each other as to the compromised safety conditions permitted the unsafe circumstances to remain so. 1. The findings set out in the preceding paragraph are sufficient to establish causation according to common law requirements in relation to the plaintiff's claim against his employer, the fourth defendant. 2. In my assessment, the same conclusion also applies to the element of factual causation that is required to be established as against the first three defendants, namely that the individual failures of those respective defendants each constituted a necessary condition of the harm suffered by the plaintiff: s 5D(1)(a) of the CL Act. 3. In relation to the claim against the first, second and third defendants, it remains necessary to consider the scope of the statutory requirement of whether it is appropriate for the negligence, as found, to extend to apply to the harm suffered by the plaintiff: s 5D(1)(b) of the CL Act. 4. In that regard all of those three defendants were, for financial reward, carrying out potentially dangerous commercial and industrial operations on the site. This necessarily mandated that in the conventional manner, they were required to comply with and to reasonably discharge the duty of care that rested upon each of those defendants. In those circumstances, there is no sound reason that emerges from the evidence for not extending the liability of those defendants for the harm suffered by the plaintiff: s 5D(1)(b) of the CL Act. There are no exceptional circumstances for excluding the defendants from liability for the negligence that has been found: s 5D(2) of the CL Act. 5. I therefore find that the plaintiff has established all of the elements required for findings of factual and legal causation to make all four defendants liable for his damages. Issue 6 – Consideration of s 151Z of Workers Compensation Act 1987 (NSW) 1. Section 151Z of the Workers Compensation Act provides: 151Z Recovery against both employer and stranger (1) If the injury for which compensation is payable under this Act was caused under circumstances creating a liability in some person other than the worker's employer to pay damages in respect of the injury, the following provisions have effect: (a) the worker may take proceedings both against that person to recover damages and against any person liable to pay compensation under this Act for payment of that compensation, but is not entitled to retain both damages and compensation, (b) if the worker recovers firstly compensation and secondly those damages, the worker is liable to repay out of those damages the amount of compensation which a person has paid in respect of the worker's injury under this Act, and the worker is not entitled to any further compensation, Note. See also section 151N of this Act and section 10 of the Law Reform (Miscellaneous Provisions) Act 1965 in relation to the application of other laws concerning contributory negligence. (c) if the worker firstly recovers those damages the worker is not entitled to recover compensation under this Act, (d) if the worker has recovered compensation under this Act, the person by whom the compensation was paid is entitled to be indemnified by the person so liable to pay those damages (being an indemnity limited to the amount of those damages), (e) if any payment is made under the indemnity and, at the time of the payment, the worker has not obtained judgment for damages against the person paying under the indemnity, the payment is, to the extent of its amount, a defence to proceedings by the worker against that person for damages, (e1) if any payment is made under the indemnity and, at the time of the payment, the worker has obtained judgment for damages against the person paying under the indemnity (but judgment has not been satisfied), the payment, to the extent of its amount, satisfies the judgment, (f) all questions relating to matters arising under this section are, in default of agreement, to be settled by action or, with the consent of the parties, by the Commission. (1A) In the application of subsection (1) (b) in relation to a worker who recovers motor accident damages to which Part 4 of the Motor Accident Injuries Act 2017 applies in respect of an injury: (a) the liability of the worker to repay the amount of compensation already paid does not include any amount of compensation already paid under Division 3 (Compensation for medical, hospital and rehabilitation expenses etc) of Part 3 of this Act in respect of the injury concerned, and (b) the liability of the worker to repay the amount of any permanent impairment compensation and pain and suffering compensation already paid is limited to the amount of any damages recovered for non-economic loss. (1B) Any amount that is excluded under subsection (1A) from the amount that a worker is liable to repay out of damages is excluded from the indemnity to which a person is entitled under subsection (1) (d). (2) If, in respect of an injury to a worker for which compensation is payable under this Act: (a) the worker takes or is entitled to take proceedings independently of this Act to recover damages from a person other than the worker's employer, and (b) the worker also takes or is entitled to take proceedings independently of this Act to recover damages from that employer, the following provisions have effect: (c) the damages that may be recovered from the person by the worker in proceedings referred to in paragraph (a) are to be reduced by the amount by which the contribution which the person would (but for this Part) be entitled to recover from the employer as a joint tortfeasor or otherwise exceeds the amount of the contribution recoverable, (d) the amount of the contribution that the person is entitled to recover from the employer as a joint tortfeasor or otherwise is to be determined as if the whole of the damages were assessed in accordance with provisions of Division 3 as to the award of damages, (e) if the worker does not take proceedings against that employer or does not accept satisfaction of the judgment against that employer, subsection (1) applies as if the worker had not been entitled to recover damages from that employer, except that: (i) if the compensation paid by that employer exceeds the amount of the contribution that could be recovered from that employer as a joint tortfeasor or otherwise—the indemnity referred to in subsection (1) (d) is for the amount of the excess only, and (ii) if the compensation paid by that employer does not exceed the amount of that contribution—subsection (1) (d) does not apply and the employer has, to the extent of the compensation so paid, a defence to an action for such a contribution. (3) This section applies to proceedings taken independently of this Act by a person to whom compensation is payable under this Act in respect of the death of a worker as a result of an injury. (4) If a worker is liable under subsection (1) (b) to repay any money out of damages recovered by the worker, the worker is not liable to repay the money out of any damages payable after the date of recovery by way of periodic or other payments for loss of future earnings or earning capacity or for future expenses. (5) For the avoidance of doubt, this section applies and is taken always to have applied to the recovery of compensation or damages, whether or not the compensation or damages were paid under an award or judgment. For example, compensation or damages may be paid under an agreement. 1. As was flagged during the course of the final submissions (at T256.50), the practical application of the provisions within s 151Z(2) of the Workers Compensation Act will be dependent upon the findings made as to the apportionment of responsibility for the plaintiff's damages as between the respective defendants. The consideration of that issue now follows. Issue 7 – Apportionment between defendants 1. As observed at sub-paragraph (5) of [262] above, the plaintiff was injured because of a confluence of negligent actions by each of the respective defendants. [T257.44 – T257.47] 2. The first three defendants have exchanged cross-claims which seek an apportionment of their respective liabilities to pay damages to the plaintiff pursuant to s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW). There was no cross-claim by the employer against the other defendants. The cross-claims are as follows: 1. The amended first cross-claim by the builder's insurer QBE, was against the scaffolder, the fascia contractor and the employer where the allegations were essentially that: 1. The scaffolding contractor erected the scaffolding but failed to carry out a full re-inspection after the scaffold was raised and failed to ensure the timber planks were properly positioned and secured, failed to secure the safety of other workers on the site and failed to prevent access to the scaffold tower platform; 2. The fascia contractor moved the timber planks on the platform so as to enable the installation of guttering, and in doing so, made unauthorised modifications to the scaffolding, failed to advise the builder of the changes made, failed to install warning signs of the modifications so made, and failure to prevent access to the scaffolding tower; 3. The employer failed to institute and maintain a safe system of work for the plaintiff, including failure to inspect the scaffolding, failure to identify hazards, failure to implement a safe system for disposing of the redundant roof tiles; 1. The amended second cross-claim by the scaffolding contractor against the builder's insurer, QBE, the fascia contractor, and the employer, where the allegations were essentially that: 1. The builder, as site controller, site manager and site supervisor failed to undertake precautions, inspections or require remedial scaffolding work, failure to ensure safe access and monitoring of the works and general systemic failure to manage safety issues on the site; 2. The fascia and guttering contractor made unauthorised alterations to the bridging planks arrangement and failed to ensure the platform planks were left properly positioned and secured, failure to provide barriers to access, failure to warn other contractors on site of prevailing safety issues, failure to provide inspection and safety compliance; 3. The employer failed to institute and maintain a safe system of work for the plaintiff, and allegations along the lines outlined at sub-paragraph (1)(c) of [270] above; 1. The amended third cross-claim by the fascia and guttering contractor was against the builder's insurer, QBE, the scaffolding contractor, and the employer, where the allegations were essentially that: 1. The builder failed to coordinate the trades and sub-trades on the site and failure to communicate with those persons and provide reasonably safe premises for those persons to carry out their work; 2. The scaffolding contractor failed to provide appropriate and safely secured scaffolding components, failed to comply with applicable standards and failed to prevent access to unsafe areas; 3. The employer's failure to provide a safe system of work for the plaintiff including along the lines outlined at sub-paragraph (1)(c) of [270] above. 1. All of those cross-defendants filed defences which resist the allegations made in respect of each of the cross-claims. 2. The principles that apply to the apportionment process are well settled, and require a comparison of the respective culpabilities according to the degree of departure from the required standard of care, including the importance of the respective acts of the parties that caused the plaintiff to suffer damage. The ultimate question is one of the causative potency of their respective actions: Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529; [1985] HCA 34, at [494]. 3. The parties made disparate submissions on the appropriate degrees of apportionment of liability as between the respective defendants. In summary, those submissions were to the following effect: 1. On behalf of the plaintiff it was submitted that the scaffolder should bear the "lion's share" of the responsibility because it created the danger which involved an egregious departure from the standard of care owed by that defendant, whereas the respective failures of the other defendants comprised failures to appropriately react to the danger created by the scaffolder. On behalf of the plaintiff it was also submitted that the employer's responsibility should be assessed at 10 per cent as it had the least opportunity to identify and deal with the danger created by the scaffolder; 2. On behalf of the first defendant, it was submitted that, giving effect to the decision in South West Helicopters Pty Ltd v Stephenson [2017] NSWCA 312, the respective responsibilities of the defendants should be in the following proportions: 1. The scaffolder – 40 per cent; 2. The fascia and guttering contractor – 40 per cent; 3. The builder – 10 per cent; 4. The employee – 10 per cent; 1. On behalf of the second defendant, two alternative scenarios were advanced, namely: 1. Scenario 1, assuming that the direct acts of the fascia and guttering contractor caused the accident: 1. The employer – 20 per cent 2. The scaffolder and the builder – 80 per cent divided equally; 1. Scenario 2, assuming that the actions of the fascia and guttering contractor were the direct cause of the accident, but that the other defendants were contributors, as follows: 1. The scaffolder – 50 per cent; 2. The fascia contractor – 20 per cent; 3. The builder – 20 per cent; 4. The employer – 10 per cent; 1. On behalf of the third defendant, it was submitted that: 1. The scaffolder – 70 per cent; 2. The builder – 30 per cent; 3. The fascia and guttering contractor – zero per cent; 4. The employer, an unstated proportion, but by deduction – zero per cent; 1. On behalf of the employer, it was submitted that: 1. Total liability rests with the builder, the scaffolder and the fascia contractor in unspecified proportions; 2. The employer, no more than 10 per cent. 1. The apportionment analysis must start from the premise that none of the respective defendants can avoid a degree of responsibility for the harm suffered by the plaintiff as they each had a material role in causing that harm, as determined in the consideration in respect of Issue 5. 2. There is no reliable evidence to suggest, on the balance of probabilities, either by an available finding of fact or the drawing of an available inference, that any of the defendants delegated their duty of care in relation to the site to any other party as discussed in Condos v Clycut Pty Limited [2009] NSWCA 200, at [61], applying Bevillesta Pty Ltd v Liberty International Insurance Co [2009] NSWCA 16, at [53], [68]. 3. It is convenient to commence the analysis with a consideration of the employer's culpability. In my view, the causative potency of the employer's negligence is on a far lesser scale of culpability compared to the other defendants. This is because by the time the plaintiff's employer came onto the site and had the opportunity of carrying out a safety inspection of that part of the site where the tiling workers would be working, the scene had already been rendered unsafe by the successive failures of the first three defendants. The employer was reasonably entitled to expect that adequate safety information, or information about the lack of safety would have been provided to him, and that did not occur. If the employer had inspected the site from roof level, his attention ought to have been attracted to the bridging planks, which, even to the limits of his expertise, should have led him to enquire of the builder, as the head contractor, as to how if at all the bridging planks, which his employees might foreseeably use, were secured. In my view, the employer's failures in that regard are on a relatively minor and far lesser scale of culpability when compared to the other three defendants. 4. That conclusion conveniently leads to a consideration of the relative culpability of the first, second and third defendants. I start that part of the analysis by identifying my conclusion that the causative potency of those three defendants was not equal amongst those three defendants. 5. In that sequence of events I consider that the causative potency of the scaffolder's conduct was proportionally much greater than all other individual defendants. This is because he and his employees had the expertise and the duty of ensuring that the scaffolding and any related structures, including the bridging planks, were suitably secured to make those structures safe for foreseeable uses on the site. Not only were those bridging planks left unsecured, which enabled the fascia and guttering contractor to easily move them to a different position, but the head contractor builder was not informed of that prevailing and unsafe condition. Those considerations and the failure to adequately communicate with the builder requires that the scaffolder should bear a greater share of the responsibility compared to the builder and the fascia and guttering contractor individually. 6. In my view, the remaining consideration of the causative potency of the culpability of the builder and the fascia contractor should be seen to be on an equal par between them so that their culpability should be seen to have contributed equally to the plaintiff's harm. This is because in each instance, the respective failures of the first, second and third defendants was essentially a failure to inspect and coordinate on the part of the builder, and a failure of the fascia and guttering contractor to inform the builder, and the others, of the effect of his actions in moving the bridging planks in terms of site safety . 7. In balancing those factors, I consider the fair, just and equitable apportionment of liability as between the four respective defendants, in descending order of proportion, to be as follows: 1. The scaffolder – 40 per cent 2. The fascia and guttering contractor – 25 per cent 3. The builder – 25 per cent 4. The employer – 10 per cent. 1. The practical monetary effect of these findings must be determined after the plaintiff's damages have been assessed. Issue 8 – Assessment of damages 1. In view of my findings that all of the defendants were negligent and that their respective negligence had causally contributed to the plaintiff's damages, it becomes necessary to assess the plaintiff's entitlement to damages both according to the requirements of the CL Act, and according to the WC Act. The following table identifies the heads of damage claimed by the plaintiff and the differentiation in the claimability of those heads of damage under those two statutory assessment schemes: Head of damage CL Act WC Act (a) Non-economic loss Claimable Not claimable (b) Past economic loss Claimable Not claimable (c) Past loss of superannuation Claimable Claimable (d) Future economic loss and superannuation Claimable Claimable (e) Fox v Wood Claimable Claimable (f) Future out-of-pocket expenses Claimable Not claimable (g) Past out-of-pocket expenses Claimable Not claimable 1. The claim for non-economic loss damages is not maintainable against the plaintiff's employer, the fourth defendant. Only damages for past and future loss of earnings are claimable against the fourth defendant: s 151G of the WC Act. The consideration of the claimable heads of damage now follows. Non-economic loss 1. The plaintiff's claim for non-economic loss is limited to the claim against the first three defendants. It must be determined according to the requirements of s 16 of the CL Act, according to a comparison to a most extreme case. 2. Non-economic loss for the purpose of that section relevantly means any one or more of the elements of pain and suffering, loss of the enjoyment of the amenity of life, and disfigurement: s 3 of the CL Act. The assessment of non-economic loss requires a factual determination of the representative percentage compared to a most extreme case, rather than a discretionary assessment as would be the case in an assessment of common law general damages: Hall v State of New South Wales [2014] NSWCA 154, at [31]-[32]. The monetary assessment is then necessarily dictated by the percentage assessment. 3. The parties made disparate submissions on the appropriate percentage assessment for s 16 damages. On behalf of the plaintiff, the submitted assessment was 55 per cent: MFI "3". On behalf of the first defendant as supported by the second and third defendants, the submitted assessment was 30 per cent: MFI "5". 4. The assessment of non-economic loss should not involve considerations of reward, generosity or parsimony, but instead, it must represent fair compensation for the plaintiff's pain and suffering and for the loss and interference with the amenity and the enjoyment of his life. 5. Those losses include the loss of satisfaction and sense of achievement that would ordinarily flow from advancement in a chosen career, and the satisfaction and sense of achievement in taking up economic opportunities. Those losses stand apart from the plaintiff's claim for loss of earning capacity for which he will be separately compensated. The matters emerging from the medical evidence, as summarised at [109] to [115] above, compared to his most likely pre-accident circumstances, as summarised at paragraphs [123] to [125] above, are clear indications that the plaintiff's current and future work restrictions provide a reasonable basis for viewing this component of loss as being significant. 6. Having regard to all the factors that aggregate to inform the assessment of non-economic loss, I consider that the assessed percentage should be significant. This is because of the nature of the medical impact the plaintiff's injuries and treatment have had upon him as already summarised at [96] to [99] above, and the identified ongoing disabilities already identified at [100] to [117] above. 7. The aggregated factors, which comprise physical, visual, cosmetic and psychological sequelae, significantly, adversely and permanently affect the plaintiff's daily life and his experiences and interactions with others. At his present age of 29 years, he has a statistically estimated median life expectancy of a little over 56 years. 8. Having undertaken the required survey of comparative considerations that arise in a s 16 assessment I have concluded that the defendant's submitted percentage of 30 per cent of a most extreme case represents an inadequate comparative assessment of the matters identified, which will always be within the plaintiff's conscious thinking. His visual impairment requires that he be constantly on guard to avoid the risk of harm due to his limited vision. Additionally, he faces the inconvenience and the risks of repeated future interventional treatment to his damaged right eye. Instead, I consider the appropriate assessed percentage should be 50 per cent of a most extreme case. 9. The current maximum gazetted amount for s 16 damages is $635,000, and 50 per cent of that amount is $317,500. I therefore assess the plaintiff's damages pursuant to s 16 of a most extreme case in the amount of $317,500. Past economic loss 1. The plaintiff's submissions on past loss of income totalled $76,558, which were then rounded down to $76,500: MFI "3". 2. That sum comprised an initial period of absence from work between 19 September 2008 and February 2010 at an average rate of $648 per week gross or $587 per week net, and then for various differences between part time and full time employment, and various periods off work for the 10 surgeries the plaintiff had undertaken before the hearing. The plaintiff's present income is $1,279 net per week. 3. It is not necessary to dissect and analyse the plaintiff's claim for past economic loss because the defendants have conceded that the plaintiff's past loss of income is in the net amount of $77,685. I therefore assess the plaintiff's damages for past economic loss in the net amount of $77,685. Past loss of superannuation 1. Based on the defendant's concession as to the plaintiff's past economic loss of $77,685 at the conventional rate of 11 per cent, I assess the plaintiff's damages for past loss of employer funded superannuation in the amount of $8,545. Future economic loss and superannuation 1. The parties are in agreement that the plaintiff's claim for damages for future economic loss should be the subject of an award by way of a lump sum cushion that is not precisely calculable, rather than seeking to project a precise recurring weekly monetary loss: s 13 of the CL Act. 2. Although the plaintiff has succeeded in obtaining relatively well paid mitigatory employment in the mining industry and has maintained employment initially since 2010 and then again from 2014 to date. He has nevertheless suffered a permanent impairment to his otherwise unfettered and unrestricted earning capacity. On behalf of the plaintiff it was submitted that the appropriate sum to be awarded for this head of damage should be $200,000. In contrast, on behalf of the defendants, it was submitted that the appropriate amount should be $100,000. Each of those approaches included allowances for loss of future superannuation. 3. For a claim for damages for future loss of earning capacity to be monetarily assessable, it is not only necessary for the plaintiff to show that he has suffered an impairment in his earning capacity, but it is also necessary for him to show that such an impairment also has the ongoing deleterious effect of causing a financial loss: Medlin v State Government Insurance Commission (1995) 182 CLR 1; [1995] HCA 5; Graham v Baker (1961) 106 CLR 340; [1961] HCA 48. 4. In my view, the plaintiff's ongoing disabilities as outlined at [100] to [108] above, compared to his pre-accident situation as outlined at [123] to [125] above, as supported by the medical evidence summarised at [98] above, and [109] to [115] above, mandate that a significant allowance be made for damages for future loss of earning capacity. 5. An impairment of earning capacity does not require demonstration of a present and ongoing calculable weekly loss. The absence of a recurring weekly loss does not mean that the plaintiff will not suffer a diminution in his earning capacity. The medical evidence as to the plaintiff's future and disadvantageous work restrictions are identified and summarised at [109] to [115] above. In such cases, as difficult as the task might be, an assessment must nevertheless be undertaken, even if only in the form of a lump sum economic buffer: State of New South Wales v Moss (2000) 54 NSWLR 536; [2000] NSWCA 133; Penrith City Council v Parks [2004] NSWCA 201; Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13. 6. On that approach, doing the best I can to be fair to the plaintiff and not unfair to the defendants, I assess the plaintiff's damages for future loss of earning capacity, including superannuation, in the amount of $200,000. Fox v Wood 1. The plaintiff is entitled to damages that account for the tax that was deducted from his weekly workers' compensation payments: Fox v Wood (1981) 148 CLR 438; [1981] HCA 41. The parties have accepted a rounded down "rule of thumb" approach of 20 per cent to identify those payments, which I therefore assess in the amount of $2,300. Future out-of-pocket expenses 1. The plaintiff submitted that an award for future treatment expenses should be allowed in the amount of $30,000. That sum comprised three elements, those being first, an annual amount of $500 for treatment to flush the plaintiff's lacrimal drainage tubes, secondly, an allowance of $5,000 as a lump sum for further surgical replacements of those drainage tubes, and thirdly, reviews of unspecified frequency by the plaintiff's local medical officer. The defendants' submissions accepted that an allowance of $25,000 should be made for this head of damage. 2. Given the plaintiff's relatively young age and the likelihood of further treatment being required from time to time, I consider the amount claimed by the plaintiff to be reasonable in the circumstances. I therefore assess the plaintiff's damages for future treatment expenses in the amount of $30,000. Past out-of-pocket expenses 1. The plaintiff has identified an amount of past out-of-pocket expenses in the amount of $152,437 to which there was no demur. In final submissions it was indicated that amount was likely to require upward adjustment for recent treatment, the cost of which has not yet been identified. In those circumstances leave was given for the final figure for past out-of-pocket expenses to be updated before the entry of final judgment: T257.13 – T247.24. In the interim, the plaintiff's past out-of-pocket expenses are assessed in the provisional amount of $152,437. Summary of damages assessment 1. My assessments of the plaintiff's damages are summarised as follows: Head of damage CL Act WC Act (a) Non-economic loss $317,500 Nil (b) Past economic loss $77,685 $77,685 (c) Past loss of superannuation $8,545 $8,545 (d) Future economic loss and superannuation $200,000 $200,000 (e) Fox v Wood $2,300 $2,300 (f) Future out-of-pocket expenses $30,000 Nil (g) Past out-of-pocket expenses $152,437 Nil Total $788,467 $288,530 Interim orders 1. The plaintiff has established his entitlement to damages awards under both damages schemes. Before entering judgment in his favour I will hear from the parties as to the appropriate orders to be made in light of s 151Z of the WC Act and my findings as to apportionment between the defendants and as to the appropriate orders for costs. Orders 1. Within 7 days of today's date the parties are to bring short minutes with draft orders that reflect the monetary effect of my findings in these reasons. ********** 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. Decision last updated: 18 April 2019