Abrahim v Parkview Constructions Pty Limited

Judgment Introduction 1Mr Abrahim was employed by Bluestar Painting Solutions Pty Limited as a painter at a residential complex being constructed in Greenwich, New South Wales. On Monday 2 April 2007, shortly after he commenced work on the third level of one of the buildings in the complex, a scaffolding board gave way underneath him. He fell three levels to the ground and was seriously injured. On the question of liability, the crucial issues are how it came about that the board gave way and the extent, if any, to which the plaintiff himself, Bluestar, the scaffolder (Erect Safe Scaffolding (Australia) Pty Limited) and the builder (Parkview Constructions Pty Limited) are responsible for the accident. Although it is accepted that the plaintiff was severely physically injured, the continuing significance of his physical injury and the extent of psychological injury are controversial. The scaffolding 2The scaffolding around the building in question (building "G") was modular in construction comprising a framework attached to vertical pipes (called "standards") which provided the support for a platform of (five) abutting steel boards 225mm wide and 1.85m long. The ends of the boards fitted snugly onto a steel beam (called a "transom"), which has a cross-section like an upside down "T", the cross-bar providing two ledges upon which rest the ends of the boards coming from opposite directions. The stem of the "T" operates as - and is called - a divider.) Mostly, the transoms are connected by longitudinal bars (called "ledgers") which have protruding plugs that slot into holes in the ends of the transoms, making a framed rectangle). The boards are thus held tight and do not need additional fixing. 3A framework made up of these platforms was constructed around the perimeter of the building (called the "perimeter scaffold"). For various reasons, including obtruding balconies, it was not always practicable for the perimeter scaffold to abut the building. Furthermore, tradespersons such as renderers and painters needed to work on the walls and a ledger abutting the wall would get in their way. To provide a work platform next to the walls, a smaller structure (called a "hop-up") was used. It was from one of these that the plaintiff fell. It comprised three boards supported at one end on a transom, each end of which was fixed to a standard, and at the other end on a bracket attached at one end to a standard forming part of the perimeter scaffold but unsupported at the other end, where it was close to the wall. The bracket also had a "T" shaped cross-section, on one ledge (called the "inner ledge") of which the boards lay. It was 675mm long, with the three boards taking up virtually its entire length, leaving a gap of about 30mm to the wall. 4It was, of course, essential to create a rigid structure which would not permit the bracket to splay outwards and thus allow the boards to fall off. A number of methods were proposed by the experts as apt for this purpose. The system adopted was to tie with wire the board closest to the wall (called the "third board") both to the bracket and the transom. At the bracket, the wire was passed through two holes a few millimetres from the end and holes in the boards and tied tightly over the divider. At the transom, the wire was passed through holes in the board and tied around the transom (which does not have holes). I should mention that the scaffolder said that a wedge had been also used at the standard end of the hop-up to prevent splaying, but this clearly failed. I accept the evidence of the plaintiff's expert, Mr Cowling, that because of the way in which the bracket was fitted to the upright pole it was not possible to drive the wedge down sufficiently hard to properly fix it against the side of the pole. Not surprisingly, it was not ultimately submitted that the wedge was adequate. Had the ties to the third board remained in place, the accident would not have happened. However, it had been untied at both ends and removed, leaving the bracket free to splay. It eventually did so, and the second board gave way when the plaintiff moved onto it. How and when the third board came to be removed is a crucial question in the case. 5Most of the length of the hop-up abutted a wall. As one moved along it from the bracket towards the transom for something over 1.5m, a space opened up on the right leading to an open balcony which provided access to the interior of building. To cover this space, something over a metre square, two wooden boards had been placed over and tied onto the hop-up. They were supported at the other end by a bracket that was secured to the standard adjacent to the building and went along the wall just underneath the balcony. 6When looked at from above, the hop-up and the timber boards formed an "L" shaped platform, with the stem going along the wall and the base turning right along the wall to the edge of the building at the balcony. Moving past the base of the "L" took one onto a five-board platform, similar to those forming part of the perimeter scaffold, one end of which rested on the transom that also supported the three boards of the hop-up on the other ledge. As with the perimeter scaffold, the ends of the transoms were fixed to standards, that standing adjacent to the building also supporting the bracket on which the wooden boards rested. As one came out of the building onto the open balcony (where balustrades and a transparent low wall was to be constructed) one might - staying to the left - have walked onto the wooden boards and turned left to move onto the hop-up or, moving to the centre and right side of the balcony, stepped out onto the five board platform. It was also possible to move straight ahead and climb (about half a metre) onto the perimeter scaffold. 7So far as the stability of the timber and hop-up platform was concerned, it seems to me that the system was adequate, as far as it went, although, as the plaintiff's expert pointed out, other modes of dealing with this space were available and, in all likelihood, superior, largely because they made the task of removing the third board more difficult and thus a tradesperson minded to do so would be more likely to contact the builder's foreman, who would arrange for a scaffolder to make the removal safe, which was the system that workers were supposed to, but did not always, follow. The consequence of the structure in place was that, if the third board was removed without tying the second board to the bracket, there was an obvious risk the bracket would splay outwards and the second board might fall when someone walked onto it. The state of the hop-up at the time of the accident 8Photographs of the area from which the plaintiff fell were taken shortly after the accident, including a number of the hop-up. The splay of the bracket is obvious and explains the fall of the second board. As to the bracket itself, a piece of wire perhaps 20mm or so long and attached to the end of the bracket stands out from the bracket, lying over what is a dollop of render that fell onto the divider, necessarily after the wire had been removed. It was undoubtedly the wire that originally tied the third board to the bracket. Although it might have been cut - it is difficult to see from the image - it looks to me as though it is a single piece which has been pulled through one of the holes at the end of the bracket. Nothing depends on this, except that it supports my view (stated below) that the board was not removed by a scaffolder. On the wire is a light coloured substance which might be either paint or render or possibly both. 9Of considerable significance is a quantity of what is almost certainly render debris and some wood shavings on the divider and the ledges. The debris scattered along the ledge on which the boards rested must have prevented any snug fit by the board onto the bracket. It lies on the ledge from within a few millimetres of the bracket end up to where the second board would have been. Regrettably, the significance of this debris was not at first appreciated and the pictures are not altogether clear (mainly because of parallax effects) but it appears to me that the debris towards the middle of the bracket does not cover the whole of that part of the ledge which would originally have been occupied by the second board. Accordingly, the debris came to be there when the board had already moved from its snug fit against the divider and was supported, in effect, only by part of its end, which was at an angle to the deflected bracket. 10I interpolate that it was submitted on behalf of Parkview that the extent of the debris in the area that had been occupied by the second board showed that it had fallen there when the second board had been completely removed while the rendering took place and then replaced on top of the debris. Since removal of the third board would have sufficed for the rendering work, this reasoning seems unlikely to be correct. I think that the presence of the debris at that point is more probably explained by its having collected in the gap created by partial splaying of the bracket and then being dislodged when the board edge against which it rested fell away. 11Render debris may also be seen, though it appears to be somewhat less, on the ledge of the transom supporting the far end of the hop-up. A thin plastic pipe is also lying over the ledge next to the divider the part where the second board would have been. It seems very likely that this came to be there when the edge of the second board moved away some distance from the divider. Since some of the debris on the transom ledge where the second board would have been goes to the edge of the ledge, the board could not have been on the ledge when the debris got there. I think that here as well, when the wall was rendered, debris had fallen into the gap between the board and the divider and then dislodged onto the ledge when the board fell. Again, the gap could only have occurred if the bracket at the other end of the hop-up had splayed. 12The wall adjacent to the hop-up was painted on the Saturday before the accident at the latest. Rendering must be finished at least three to five days before painting (though longer time frames were suggested), depending on the thickness of the render. It follows that the render debris must have been on the bracket at least since the previous Wednesday before the accident, thus that the third board had been removed and the bracket had splayed significantly for at least that period. Inspections of the scaffold 13Parkview's site supervisor was Mr Fouad Chaar, who had been in the industry for some 20 years, as a site supervisor for about 15 of those years. Although he had acquired no formal trade qualifications there is no doubt that he was fully qualified to undertake his responsibilities as site supervisor. Mr Chaar gave evidence concerning the work of the safety committee on the site, the subcontractors' meetings that were held from time to time and an induction program that was necessary for all workers to undertake when they came on the site. (It may be that the plaintiff did not attend for induction but I do not think this is relevant. He was fully aware, as he himself acknowledged, that he should not interfere in any way with the scaffolding on the site.) 14I accept that at various subcontractors' meetings and by other means of communication, important safety issues were raised by Parkview with its subcontractors, including, in particular, the importance of not interfering with scaffolding. The system in place, according to Mr Chaar (and I accept) was that if a tradesperson required scaffolding to be moved or adjusted so that the work could be done, the appropriate course was to notify Parkview, which would then arrange for the scaffolder to take the appropriate steps. However, there can be no doubt that from time to time tradespersons, perhaps under time pressures or simple impatience with the rules, removed or adjusted scaffolding so they could get on with the job. The evidence makes it clear that this is an endemic problem on construction sites and had occurred on a number of occasions on this site. 15The safety committee comprised representatives of the subcontractors on site, for example scaffolders, painters, gyprockers, tilers, steel fixers and the like. The committee assembled once a week to inspect the entire site, including the buildings both internally and externally. Safety issues would be documented and taken up with the subcontractors. In the event of a category one risk, so dangerous that death (or, as I understand, serious injury) might result, then that particular matter would need to be rectified immediately rather than merely recorded for later attention. One of Mr Chaar's tasks as a member of the safety committee, was to (as he put it) "go on a walk" to inspect the site, including the scaffolding and, if a component of the scaffold was missing, the scaffolder would be required to replace it and, until this was done, the area was closed off. He said that he had found on a number of occasions that scaffolding had been tampered with, apparently by tradespeople trying to get to a wall or otherwise doing their work. A site safety compliance inspection record was maintained by Parkview and was required to be completed following an inspection by the safety committee. The last of these before the accident was dated 19 March 2007. 16Mr Chaar said that he carried out daily safety walks and daily inspections of the scaffold, accompanied by a scaffolder although it was not part of the arrangement with Erect Safe to carry out a daily inspection. This was necessary because there was a high risk that the tradespeople would interfere with the scaffold. He said that, on Fridays, his usual practice was to carry out the inspection with the scaffold foreman a Mr Mark Hassian. It was from this knowledge of his usual practice that he believed he had inspected the scaffolding in the area of the accident on the previous Friday. He did not check each piece of the scaffolding but looked for holes or removal of boards or trips hazards and the like. Although he was not a qualified scaffolder, he would have recognised the absence of some major component (such as a board, as I understood him) and ensure that, if it were dangerous, it was repaired. He said that the process was that he and the scaffolder would walk around the perimeter on each level, working down from the top, ensuring that scaffold ties were in the correct location, spreader bars would be in place, and if there were any gaps - as I understood him - the missing boards would be immediately replaced. He was asked whether, when he was last on the scaffolding near the accident site, he recalled seeing any missing boards on any of the bays or hop-ups in that area and said, "I don't recall, I don't remember, so no, I don't remember". However, he told Mr Nikolovski, the WorkCover inspector, at the scene of the accident shortly after it occurred, that "the boards were up there [referring to the hop up platform] as I was up there on Friday with the renderer" but not, I note, with Mr Hassian or, indeed, any scaffolder. (The renderer had not accompanied Mr Hassian, but simply happened to be there.) Mr Chaar said that, when he inspected the hop-up bracket, it was safe and fit for use; had he noticed the missing board, he would have done something about it. 17Mr Chaar said that he had been on site on the previous Saturday and left at 11.00 am on that day but did not carry out an inspection, believing this would be done by another Parkview employee. (This appears to be inconsistent with his evidence that the reason he did not carry out the safety walk on the day of the accident was because he had been told by Mr Kahla that all of the painting was finished and, as I understand it, it was therefore not necessary to inspect the scaffolding as it was to be stripped early on the Monday morning.) 18Parkview also employed a Mr Walter Russo as a safety co-ordinator. In addition to the safety committee inspections, Mr Russo carried out his own inspections from time to time. One of his tasks was to visit the building sites and conduct monthly safety audits. He also assisted the site safety committee and participated in some of the safety walks conducted on the project. Reports completed by him in respect of inspections on 19 March and 30 April 2007 were tendered. He confirmed Mr Chaar's evidence as to the extent of the safety committee's inspection during its safety walks, in particular, that arrangements were made for immediate rectification by the scaffolders of missing scaffold and the problem recorded in the minutes of the committee. Mr Russo was not able to recall whether an inspection had occurred after 19 March 2007. No minutes of any meeting after that date and before the accident have been tendered and I think it should be inferred that there was no safety committee inspection conducted during this period. In addition to the safety committee walk, he himself conducted a safety walk on the site but this was also done on 19 March 2007. He did not mention whether he was aware of the daily inspections which Mr Chaar said that he undertook. 19I have already mentioned that the scaffolding foreman on the site was Mr Mark Hassian. He gave evidence of the mode of construction of the hop-up platform, the details of which I have already sufficiently set out above. It is, perhaps, worth mentioning two additional matters. Firstly, when scaffolding is removed it is cleaned, so that it can be inferred, I think, that when the hop-up was placed in situ it did not then have the debris on it to which I have already made reference. Furthermore, when the board was tied to the bracket with wire, the wire had no paint or render on it. He said that the wire was tied up hard and twisted so that a tool would be required to untwist it. It could be cut by hitting it hard with a hammer or perhaps, some other hard piece of metal, causing it to snap across the divider. It seems to me, from the appearance of the wire and its position that probably it had not been cut in the way Mr Hassian described but, rather, it had been cut underneath and pulled through the hole in the board. 20Mr Hassian described inspecting the scaffolding a regular basis and said that the last time he looked at the scaffold in the area where the accident occurred was on the Friday and that it was then intact. He said that he was with either Mr Chaar or another Parkview employee, Mr Mark Aldridge. He said that when he was on the scaffold he did not undo the scaffolding boards on the hop-up. Nor did he see any of his men do it. On 30 April 2007 Mr Hassian was interviewed by Mr Nikolovski from WorkCover, he was asked, a number of questions about the construction of the scaffolding at the site of the accident. He drew a small sketch in Mr Nikolovski's notebook. The following conversation then occurred - Q. Was it a three board hop-up where the person fell from? A. Yes? Q. How were the boards placed? A. They were placed in the web of the transom and hop-up bracket. The last boards were double tie wired on both ends. On the Saturday, I think it was the Saturday me and the renderer went to look at the scaffolding and we walked on this area and all of the boards were there. Q. Who was the renderer? A. His name is Frank from City Rendering. 21He was not asked any further questions about inspections. It seems to me that, had Mr Hassian in fact conducted an inspection of the site on the previous day with either Mr Chaar or Mr Aldridge, it is very likely that he would have mentioned that fact to Mr Nikolovksi. It is obvious that the safety of the scaffold at this point was in issue and that Mr Hassian as the foreman scaffolder on the site was responsible in this regard. Mr Hassian said that, if he had been on the site with the renderer, it would have been for the purpose of him showing Mr Hassian where he was going to work next, in case scaffolding needed to be either replaced or added. However, no rendering needed to be done on the wall, though possibly it was required on the hob holding the balustrade at the edge of the balcony, which would not have required any removal or adjustment of the scaffold. It will be remembered that Mr Chaar also commented to Mr Nikolovski, shortly after the accident himself that he had been on the scaffolding with the renderer on the previous Friday. 22Mr Hassian said that, when he inspected the scaffolding on the previous Friday, no boards either wooden or metal had been removed and there were no ties that appeared to be cut. Mr Hassian was asked in cross-examination - Q. I think there's an inspection usually each day either by yourself or Mr Chaar or someone from Parkview? A. Not quite each day, no, not every day. Q. How regularly is that? A. Well, we give a monthly signoff. Q. Does somebody from Erect Safe walk over the scaffolding each day or not? A. No. Q. If there was an inspection of the scaffolding it would be done by someone from Parkview? A. Well, it would be from Parkview and from Erect Safe. He was then asked - Q. Is it your recollection that the last time you were on the scaffolding before this accident was on the Friday before the accident which was on the Monday? A. I think so. Q. And at that time there were no gaps, as it were, in the scaffolding on that level? A. As I remember, yes. 23Whether Mr Chaar had indeed inspected the scaffold on the Friday is most unclear and, I think, must be doubted. He gave this evidence - Q. When had you last inspected the scaffolding erected around the southern side of that building, which day, if you are able to recall? A. If I did the inspections with the scaffolder like I did, it would be on a Friday, once a week. So I can't give you the particular date. 24He said that his usual practice was to inspect the scaffold on a Friday with the scaffolder supervisor, Mark Hassian. However, although that was his practice, he had no recollection of the particular Friday. 25As to seeing any gaps, Mr Chaar meant by this that there were no gaps that exceeded 225mm, this distance being the maximum prescribed by the applicable standard. Mr Hassian confirmed that the renderers need to be able to get a trowel to the wall and, therefore, at least one scaffolding board had to be removed. He agreed that, if the board were to be removed safely, the second board would have to be tied down because otherwise the renderer could not safely walk on it. When the renderer had finished, the board would be "normally" replaced and retied; there was no need to remove the tie on the second board. So far as the board that had been removed which had simply been placed upside down on a nearby platform, Mr Hassian said that, had it been removed from the bracket by his scaffolders, they would not have left it simply lying around. 26Applying the measurements of the boards, bracket and distance to the wall mentioned above, removal of the third board would have left a gap of about 255mm to the wall, only 30mm or thereabouts wider than the Standard distance. Mr Hassian agreed that was not uncommon from time to time for there to be a gap between the scaffold and a wall of 225mm. If he (or, indeed, Mr Chaar) had been inspecting for gaps and not missing boards, the gap that resulted from the missing third board might not have looked problematical. Mr Hassian answered, " I don't know because when I went up there with the other guys beforehand everything looks together". He said he was sure both that he had inspected the particular part of the scaffold in the week or so before the accident and would have noticed the missing board. He was then asked whether he was clear about this being on the Friday or the Saturday before the accident and answered, "It could be a week before the accident, it could be on those days". 27I am satisfied that the third board had been removed from the hop-up for at least a week before the accident. This is established by the presence of what is almost certainly render on the bracket and the transom as well as the hose on the latter, combined with the necessary delay between rendering and painting. Given the dangerous state in which the hop-up was left, I accept that the board was not removed by the scaffolders. Even if Mr Chaar and Mr Hassian inspected the scaffold in the area of the hop-up during this period (of which, in the end, Mr Hassian was far from certain) they did not, for one reason or another, notice that the board was missing, that the second board was not tied and the bracket had splayed. The contemporaneous statements to Mr Nikolovski by Mr Chaar and Mr Hassian is certainly significant evidence that they were in the area of the hop-up on the previous Friday or Saturday but I am unable to accept, even assuming they were in the vicinity of the hop-up, that they made anything more than the most cursory observation. I am quite sure that the protruding tie-wire at the end of the bracket, the cut or broken wires at the transom end, the missing boards, the gap between the transom and the ends of the boards showing that they had moved and the splayed bracket were all there to be seen and would, if any one had been noticed, have immediately warned of the danger. 28Furthermore, I accept the evidence of Mr Kahla and the plaintiff (discussed below) that there was no reason for them to remove any scaffolding and that they did not do so. No other work was being done to the exterior of building G either on the Friday or the Saturday that required adjustment of the scaffolding. In short, once the painters are excluded, as in my view they must be, there remains no other candidate with any interest in removing the boards. No rendering needed to be done to the exterior. The logic of events negates the possibility that the condition of the hop-up was observed by Mr Hassian or Mr Chaar on the Friday or the Saturday, even if (as I think doubtful) they were in the vicinity and able to observe it on those days. The day of the accident 29The crucial witnesses in this respect are Mr Kahla and the plaintiff. The plaintiff's memory about some of the details is, for understandable reasons, not clear. However the substance of his evidence on matters of importance is clear enough. It seemed to me that the plaintiff was telling the truth as best he could recall although in some respects his evidence might have been unreliable. He said that he had not undergone a site induction but had worked on sites with scaffolding before. So far as his understanding of scaffolding went, if there was a board missing from a section of scaffolding, as long as one did not walk into the gap, he believed walking on the board itself would be safe. 30The plaintiff had worked a five-day week at the site for about a month before the accident. He recalled working there on the previous Friday but was unable to recall one way or another whether he had done so on the Saturday nor whether he had been working on the hop-up on one of those earlier days. He said he arrived at work at about 7.00am on the Monday morning and met his employer, Mr Kahla on site. It was necessary to do some touch up work and Mr Kahla took him to the place where it needed to be done. He took with him a pot of paint and a small brush. They also took two roller sticks, two roller frames, two texture rollers and a paintbrush together with one or possibly drums of texture paint, which were to be used on another part of the building when the touch up was completed. 31The plaintiff and Mr Kahla went to the third level via the inside of the building and walked from the balcony onto the scaffold to the area requiring touching up. After he showed him where to paint, Mr Kahla went and did something else, telling the plaintiff to wait for Mr Kahla to return and then they would do more work together. The plaintiff used only his small brush and the paint pot, the other equipment being placed nearby on the scaffolding. After the plaintiff finished his work he recalled walking from where he had been painting but could not recall the direction he took. The plaintiff could not recall whether he had walked across the second board to go to the work point and was walking back along it when he fell. However, he recalled that he had finished the touch up and was going to collect the tools when he fell but he did not remember whether he was holding the tools at that time. The plaintiff could not recall when he first needed to stand on the hop-up to paint but that it certainly occurred on a number of occasions before the day of the accident. It is not necessary to deal with the plaintiff's evidence in greater detail. I would add simply that the state of the equipment found on the ground supports his evidence as to the work he was doing. 32The plaintiff said that Mr Kahla had told him that he should not interfere with scaffolding for any reason whatsoever but he could not recall when this was said to him. He said that he had not moved any of the boards on the hop-up or otherwise. He said that had he seen that a board was missing on the hop-up, this would not have alerted to him that something might be wrong, although it would be necessary to stay clear of the gap. He said that he did not think there was anything odd or unusual in the removal of a board next to the wall. He had seen that kind of thing before on this site and had walked safely on the remaining boards. The plaintiff thought that the accident had occurred at around 8.00am, about 40 minutes or so after arrival on the third level. (The ambulance was booked at 8.17am and it seems likely that the accident had occurred a few minutes before this time.) He agreed that he had been painting for a while. He remembered Mr Kahla telling him that the scaffolding was due to come down some time that morning but does not recall any specific time being mentioned. The rollers were taken with them because it was intended that he and Mr Kahla were to work on another part of the building after the touch up had been completed. 33I should mention that Mr Nikolovski said that, on 5 April 2007, he spoke with the plaintiff over the telephone whilst the plaintiff was still in hospital. His note of the conversation was that the plaintiff told him - ... that he was going to cut in the balcony, when he stepped on the scaffold plank and he stated that it felt like nothing and he started falling with the plank underneath him. I asked him if he removed the scaffold planks and he stated he was not [so] stupid to remove the boards." 34The conversation was cut short at that point because the plaintiff was in pain. It is obvious that the plaintiff would at this point have been affected very much by his injuries and, it is reasonable to infer, by his medication. The likelihood of confusion strikes me as high. I consider that his evidence about touching up (rather than cutting in) is likely to be more reliable. (It is also confirmed by Mr Kahla.) The plaintiff pointed out, when taken to one of the photographs, that the wall which was adjacent to the gap opposite the open balcony was not able to be touched up because, although it was finished, work still needed to be done on the concrete slab holding the balustrades. He said that Mr Kahla had not said anything to him about being careful as he walked across the scaffolding boards from which he fell and had given him no instructions at an earlier time about being careful while walking across scaffolding brackets of this kind. The plaintiff said that whilst he was on the third level he saw no other workers at all near that area. 35Quite apart from the inference to be drawn from the presence of the debris on the bracket and the transom, the plaintiff had no need whatever to remove the third board. Moreover, as I mention below, Mr Kahla gave evidence (which I accept) that the wall that he showed to the plaintiff as requiring touching up was further along the building from the hop-up, so that the plaintiff was not working from it. Taking all the evidence together, including that of Mr Chaar and Mr Hassian, I have no doubt that the plaintiff's evidence that he did not remove the third board was both truthful and reliable. 36I now move to the evidence of Mr Kahla. He confirmed that on the Saturday before the accident he worked with the plaintiff on the site, although there might have been one or two other painters whose names he could not recall. He and the plaintiff were painting the wall of the level beneath the hop-up. He said that cutting in work needed to be done at the top of the wall underneath the hop-up platform on the Friday or the Saturday but that this was done from below and by brush. Work started at about 7.00 am on the Saturday and ended at about 3.00 pm. When he left he did not see whether other tradespersons were still on site although he thought he was not the last person to leave. He said that on the Friday or the Saturday he and the plaintiff were working on the wall both directly adjacent to the hop-up and further along. They worked side by side. He said that they stood on the hop-up platform and it appeared safe. He did not recall the piece of wire sticking up and said that he "possibly" would have noticed it had it been there at the time. Although he at first said there were three boards on the hop-up, I think the sense of his evidence is that he did not recall seeing any gap through which someone might fall and reconstructed the presence of three boards. He agreed that the hop-up platform was close to the wall but it was not necessary to remove the board because they used a smaller than standard roller which could fit in the available gap. By knockoff, there was still some touching up to be done on damaged sections of the wall further along from that adjacent to the hop-up. He thought perhaps only five minutes was necessary. In Mr Kahla's statement of 8 March 2011 he said that there was still a couple of hours work to be done on the Monday morning but, when he read it again before he gave evidence, he realised this was a mistake and that in fact five minutes or so was involved. The touch up work could not be done immediately because the paint needed to dry. 37It is important to note, I think, that Mr Kahla's statement, did not deal with the state of the scaffold except to say he did not "inspect that area of scaffold". I do not believe that, as at the date he gave evidence in September 2011, Mr Kahla had any actual recollection of the state of the scaffold on the Friday, Saturday or Monday, except that he did not think that there was any safety issue in relation to it. His evidence does not lead me to doubt the conclusion that I drew from the presence of the debris on the bracket and the plaintiff's evidence that he had no need to and did not remove the board. 38On the Monday (following a conversation with Mr Chaar, to which I shall shortly come) Mr Kahla and the plaintiff then went to the area where the touch up needed to be done. They removed no scaffolding. Mr Kahla said that they had walked past (I think he meant along) the scaffold platform (to the right of the gap left by removal of the wooden boards) and stepped up about half a metre to the perimeter scaffold going along the length of the building. This was necessary to get around to the area where the touch up was to be done, about five metres further on from the part of the wall adjacent to the hop-up, which did not go far enough. When they got to the touch up site, they stepped down off the perimeter scaffold onto a platform that took them closer to the wall. Mr Kahla said that he then told the plaintiff to touch up in that area and left to work on the other side of the building. As he recalled it, after the touch up was completed the plaintiff was to meet him there, where there was about a day's work to be done, but it was on scaffolding which was not coming down. I think it likely that the plaintiff returned along the perimeter scaffold to collect the painting gear but walked onto the hop-up to return when he fell, not appreciating that he could not return by that route and needed to use the adjacent scaffold. Mr Kahla said that he found out about the accident when the plaintiff (rather surprisingly) telephoned him on his mobile. He came straight away to where the plaintiff was and then went to the other side of the building to find a phone to call the nurse, then returning to the plaintiff. 39Mr Kahla had been told by Mr Chaar that the scaffolding in the area of the building where the accident occurred was to be removed on the following Monday. He also spoke to Mr Chaar at around 7.00 am on the Monday morning. There is a dispute between him and Mr Chaar about whether the conversation was face to face or on a mobile phone and about the content of the conversation, in particular concerning whether any further painting work needed to be done and the time the scaffold was being stripped, and whether Mr Hassian was present (of which Mr Hassian gave no evidence). I think that the evidence of both Mr Kahla and Mr Chaar about these conversations honestly represents their respective recollections but I am unable to prefer one over the other so far as accuracy goes. Moreover, both accounts are somewhat obscure. Neither identifies the particular parts of the building being discussed, either as to where the scaffold was to be removed or where the painting had been completed. For example, I have mentioned that Mr Kahla still had a day's work of painting on building G, quite apart from the touching up which was on part of the building where, he said, scaffolding was not to be stripped. It is difficult to accept that he assured Mr Chaar that no painting at all needed to be done. Since I am satisfied that the board had been removed at least a week before the accident and not by a scaffolder, these conversations are not, at all events significant. 40It was submitted on behalf of Parkview that, had Mr Chaar been aware that painting was to be done on building G, he would have inspected the scaffold in the morning before the painting work started. Mr Chaar said that, had he been aware that painting work on level three was to continue, he "more than likely" would have inspected the area and that the reason that he did not do so was that Mr Kahla had told him, in effect, that the painting was finished but, at all events, it was unlikely that the inspection - even if Mr Chaar intended to conduct one - could have taken place before the accident, since Mr Kahla and the plaintiff went straightaway to the building, collected their gear and started work. At all events, I am not satisfied that the conversation - as distinct perhaps from what Mr Chaar gathered - occurred as Mr Chaar recalled. 41Mr Chaar said that when he arrived at the scene of the accident Mr Kahla was not there (I think that is because, although he had arrived earlier, he had gone to contact the nurse). Mr Chaar called him and said, "Look one of your painters has fallen through the scaffold. What's he doing here?" and Mr Kahla replied, "I didn't know he was there". This answer suggests, of course, that Mr Kahla had - as he said - already seen the plaintiff on the ground and from where he had fallen. It is consistent with his evidence as to where he had directed the plaintiff to work, which was further along and not on the wall next to the hop-up, evidence which I accept. Since Mr Kahla acknowledged that he was on the same level with the plaintiff, it seems to me most unlikely that he would have denied that the plaintiff was on that level at all. I note that Mr Kahla says that this conversation did not occur but I think he is mistaken. This might reflect on his credit but the occasion was one of extreme anxiety, which can, and often does, affect recollection. I do not draw an adverse inference from his denial. I should mention that the timeframes given by the witnesses as it were bordered on one side by the 7.00 am arrival and at the other end by the 8.15 am accident suggest that the plaintiff was working on the third level for somewhat longer than perhaps he and certainly longer than Mr Kahla recalled as being necessary. But, in the end, I do not think any significant conclusions follow from this uncertainty. Conclusion on liability 42As I have already stated, the third board on the hop-up was not removed by Mr Kahla, the plaintiff or the scaffolder. Almost certainly it was removed by the renderers. This conclusion is supported by the following matters: first, the debris on the bracket and the transom was render and could not have come to be where it was found if the boards had been in place; secondly, the dollop of render on the end of the bracket must have fallen there after the tie wire was unwrapped; thirdly the painters had no reason to remove the third board; fourthly, the renderers were the only remaining candidates and did need to remove it, thus almost certainly doing so; fourthly, the third board was not replaced and retied as I believe a scaffolder would have done; and, fifthly, I believe the evidence of Mr Kahla and the plaintiff that they did not remove the board. I accept the evidence both of Mr Kahla and of the plaintiff that no painting other than touching up was performed in the area of the hop-up bracket on the day of the accident. This evidence is confirmed by the fact that the rollers, which were essential for the painting, were still clean when they were found on the ground near where the plaintiff fell. That painting, according to Mr Kahla had been undertaken on the previous Saturday. 43I am also satisfied that the construction of the platform was, in all the circumstances, negligent. The evidence that tradespersons on building sites in general and, indeed, in this particular building site, were wont to remove scaffolding where it was necessary or convenient to do so to enable them to undertake their work is overwhelming. The fact that it was thought that daily inspections were necessary and subcontractors were warned on a number of occasions about interference with the scaffold reflects the clearly perceived risk that this conduct was, if not endemic, certainly common. It was the duty of the scaffolder to construct a safe scaffold on a large building site in light of the practical realities and difficulties that such a site presented and, for that purpose, to have in mind not only that boards adjacent to buildings need to be removed so that certain jobs can be done but that, despite warnings that this must be left to the scaffolder, tradespersons often took it upon themselves to do so. The continuous presence of scaffolders on the site should have alerted them, if they were not already aware (a most unlikely possibility), of this problem. Since hop-ups are constructed near to the walls, there was a substantial, obvious and manifestly foreseeable risk that the board closest to the wall will need to be removed and hence might well be removed by a tradesperson, such as a renderer. 44Ensuring that the bracket (or brackets) would not splay was essential to the safety of the platform. The method chosen here was to tie the third board to the bracket and the transom. It was obvious that, should this board been removed, as was certainly foreseeable, indeed distinctly likely the platform would thus be rendered dangerous. The obvious solution was, at least, to tie the second board to the bracket and the transom, together with the third board (to prevent it from tipping over and falling). Though, if the wooden boards remained in place, this would have all events have been prevented and only the second board needed to be tied. 45I have mentioned that other possible solutions were suggested by the expert evidence but it is not necessary to consider them. Once it be accepted that there was a substantial risk that tradespersons might well take it upon themselves, despite the warnings, to remove the board closest to the wall, commonsense itself without any expert knowledge would have required the tying of the second board and, perhaps, for extra safety, also the third board. Both Mr Costin, the expert witness called by Erect Safe and Mr Cowling, the expert called by the plaintiff, agreed that an "easy to do" and "sensible response" to the risk created by the likelihood of the third board being removed would be to secure the second board, which would hold the hop-up in place. 46Parkview was well aware of the propensity of tradespersons to remove scaffolding. In addition to what inspections showed, on the day following the accident, Mr Braithwaite of Erect Safe forwarded a fax to Parkview which asserted that it had informed Parkview of "numerous occasions" where tradespersons had been dismantling the scaffold. I am sure that this was not news to Parkview. It was recognition of this very risk that not only led to the warnings about not doing so but to the inspections by Mr Chaar or other employees. Whether they were in fact conducted daily is not altogether clear, given the somewhat qualified evidence of Mr Chaar and whether he actually inspected the scaffold at the site of the hop-up every day is, I think, rather doubtful, in light of the fact that the third board was missing for at least a week before the day of the accident. If he did so, it follows that he did not notice the problem. The missing third board would, of course, have been obvious, as would the missing wooden boards. Any more than a casual glance of the remaining two boards, with the question of safety in mind, would immediately have demonstrated that the second board was not tied and the bracket, not being held, was at risk of splaying. Mr Chaar said that the missing board alone would have been a danger signal requiring immediate attention. I am quite satisfied that his experience was sufficient to have alerted him, had he actually looked at the hop-up with a view to being satisfied that it was safe, to the loose second board, the gap that had opened up and the unsupported bracket on which it lay, thus of the danger this set-up represented. 47Since it must also have been clear to Mr Chaar that renderers were likely to need the removal of boards that were close to the walls that needed to be rendered and he was responsible for coordinating the subcontracting work, I think it should be inferred that he was aware of the rendering work being undertaken on the wall in the vicinity of the hop-up platform and, thus, alerted to the real risk that the renderers might remove the third board and might well not replace it. Mr Chaar was not questioned about this line of reasoning since it was his evidence that he inspected the hop-up platform on the Friday before the accident. 48Parkview was the principal of the project as well being the occupier of the site. I do not think it can be doubted that, in respect of the safe construction of the scaffolding, Parkview was entitled to rely on the expertise and skill of Erect Safe since it was reasonable to engage the services of Erect Safe which is undoubtedly competent to control the system of work without supervision and it had no duty to retain control over the scaffolding where "the activity... [was] organised and... [was] placed in the hands of the independent contractor", in this case Erect Safe: see, for example, Pacific Steel Constructions Pty Limited v Barahona; Jigsaw Property Group Pty Limited v Barahona [2009] NSWCA 406 at [80], [87]. It follows, as I think, that the duty of Parkview in relation to the construction of the scaffolding was satisfied by its employment of Erect Safe. 49Once constructed, it was necessary to ensure that the scaffold remained safe. The risk that this would probably be compromised by the prohibited but nevertheless common practice of tradespersons to remove scaffolding in order to undertake their work or undertake it more conveniently made a system of frequent and regular inspection obviously essential. The system adopted by Parkview involved a monthly inspection of the whole site by the safety committee, which included inspection of the scaffold, a monthly inspection of the scaffold by Mr Hassian, usually with someone from Parkview, at the conclusion of which an inspection report would be provided to Parkview and other informal inspections by him from time to time. But Mr Hassian said that these were not daily and, indeed, I rather think the thrust of his evidence was that this was done monthly - Q. I think there's an inspection usually each day either by yourself or Mr Chaar or someone from Parkview? A. Not quite each day, no, not every day. Q. How regularly is that? A. Well, we give a monthly signoff. Q. Does somebody from Erect Safe walk over the scaffolding each day or not? A. No. 50The safety practice in place was, according to Mr Chaar, the daily inspection of the scaffold. The last safety committee walk was undertaken on 19 March 2007 on which day Mr Russo conducted his own. Mr Russo gave no evidence about being aware of Mr Chaar's apparently independent inspection. The scope of works provided that Erect Safe was to conduct monthly inspections and certify as to safety with additional inspections following any suspicion of scaffold tampering or when modification was required for work to continue. Since it is clear that more than monthly inspections were necessary in order to ensure the integrity of the scaffold, it must follow that Parkview accepted this as its responsibility although, it may be, inspections by its supervisors were conducted in the company of a scaffolder. So much, it seems, can be accepted from Mr Chaar's own evidence about his daily inspections which he obviously regarded as necessary. 51Accordingly, Erect Safe was in breach of its duty of care to a worker such as the plaintiff who might well walk onto the hop-up, assuming that it was safe and not being aware of the risk posed by the loose second board. For its part, Parkview was well aware of the risk of removal of boards adversely affecting the safety of the scaffold and was in breach of its duty to the plaintiff by not ensuring that regular and frequent inspections were undertaken by a person of appropriate skill directed to checking the safety of scaffold where it had been tampered with, such as had occurred here, especially where it knew that renderers needed to remove boards and might do so themselves and that renderers had been working in the vicinity of the hop-up from which the plaintiff fell. 52I now move to Blue Star. There can be no doubt that Mr Kahla had a duty of care towards the plaintiff. I do not accept that Mr Kahla was unaware of the missing board. Indeed, I do not doubt that he had painted from the hop-up with the plaintiff on the previous Saturday. I accept, however, that he did not appreciate that the second board was at risk of falling. I think that Mr Kahla believed, as did the plaintiff, that the scaffolding was competently erected and that it would safe to stand on and work from it. Furthermore, no work was to be done on that wall on the Monday morning and the path taken by him and the plaintiff to the touch up site did not involve walking on the hop-up. There was thus no occasion for Mr Kahla to consider whether the hop-up was safe. 53It may be that Parkview was entitled to expect that experienced tradespersons would deal with dangers or defects which their "trade skills allow... [them] in the ordinary way to perceive and deal with... [but 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": Ilvariy Pty Limited v Sijuk [2011] NSWCA 12 per Allsop P (with whom Hodgson and Whealy JJA agreed) at [21]. I am of the view that the plaintiff could not be expected to inspect the hop-up for safety before he walked on it, except to the extent that he mentioned, namely that he should avoid any gaps. 54It follows that Blue Star was not negligent, also that that the plaintiff was not guilty of contributory negligence. Causation 55In accordance with s 5D of the Civil Liability Act 2002 it is necessary to consider whether the negligence I have identified as having been committed by Erect Safe and Parkview "was a necessary condition of the occurrence of the harm" and whether it is appropriate for the scope of their liability to extend to the injury. By virtue of s 5E, the plaintiff "bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation". 56It is submitted on behalf of Parkview, in substance, that the failure to inspect the scaffolding on the Saturday or prior to the commencement of the painting work on the Monday morning of the accident was not "a necessary condition" of the plaintiff's fall since the scaffold was deliberately interfered with by a person for whom Parkview was not responsible, whether it was the plaintiff or anyone else, citing Adeels Palace v Moubarak [2009] HCA 48. However, unlike Adeels Palace, this is not a case in which it is sought to make Parkview responsible for the removal of the board. Rather the negligence which I have found was that, knowing there was a very real likelihood that the third board was likely to be removed indeed, was necessary to be removed, by the renderers Parkview failed to carry out adequate inspections to ensure that any such potential removal, if it occurred, was remediated and did not lead to an unsafe scaffold. An appropriate inspection by Mr Chaar of the hop-up platform would have revealed, as I have found, that the bracket was not held in to the boards and was liable to splay and therefore that either one or the remaining boards were liable to fall should someone walk or stand on them. The failure to inspect was therefore directly linked to the fact that it was unsafe when the plaintiff moved onto it and thus was a necessary condition of his fall and, thus, his injuries. 57So far as Erect Safe is concerned, it was well aware of the risk that the third board might be removed by a tradesperson and not replaced and retied but failed to take an obvious and easily undertaken step of tying the middle board, either by itself or together with the third board to avoid the substantial risk that such a removal would present. The likelihood that the bracket would splay was precisely the risk which led to the tying of the third board, the removal of which was reasonably foreseeable, and thus the risk revived unless the bracket were otherwise secured by tying the second board to it. It was the duty of Erect Safe to construct the hop-up with the risk of removal of the third board in mind. This failure was "a necessary condition of the occurrence of the harm" to the plaintiff. It is clear that the safety of the scaffold upon which work is to be done, particularly at a height, is of crucial importance. This is acknowledged both by Parkview and Erect Safe. Where the plaintiff's injury occurred because the scaffolding was so constructed as to be foreseeably rendered unsafe by likely events, even though by the act of third persons, it is appropriate that the scope of Erect Safe's liability should extend to the plaintiff's injuries. Medical evidence 58The plaintiff was taken by ambulance from the accident site to the Royal North Shore Hospital. He had sustained multiple injuries including fracture of the superior and inferior pubic rami, superiorally displaced left pubic ramus, a fracture of the left sacral ala, a fracture of the right distal radius and ulna, a fracture of the right mid-shaft humerus, right sided pelvic haematoma in relation to iliopsoas, a small tear to the right internal iliac artery and other unspecified but widespread injuries not calling for particular mention. Surgery was necessary on the following day. It is obvious that the plaintiff was in considerable pain, and requiring bed rest until 14 May 2007 when mobilisation was re-introduced with physiotherapy, partial weight bearing on the left side and full weight bearing on the right side. He continued to need high dose opiates. He was transferred to the Alwyn Rehabilitation Centre on 18 May 2007. 59On 23 July 2007 he was referred to Dr Sved, a urological surgeon in relation to chronic testicular pain which the plaintiff said had been present since the time of the injury and remained severe. Dr Sved's concluded that the plaintiff's testicular pain was referred from his severe back injuries. He thought that, ultimately, this pain would be managed alongside the plaintiff's other chronic pain although, if this were unsuccessful, inguinal nerve blocks might be of some benefit. MRI examination in December 2007 showed the sequelae of an axonal shearing injury which was described by the radiologist as "the sequelae of a traumatic brain injury". Thus, apart from his extremely serious pelvic injuries, he suffered a radiologically demonstrated cerebral contusion which caused memory dysfunction, daily daydreaming, problems with auditory discrimination, tinnitus, rotary vertigo and severe headaches. The head injury also caused mild loss of hearing in the right ear and tinnitus affecting both his sleep and concentration. 60It is not disputed that the plaintiff suffers from continuing significant symptoms of pain and disabling weakness affecting his right wrist and hands, ankles and feet. He can walk but not for long distances and uses a walking stick when he is on a street or in a shopping centre because he loses his balance or fears that he might do so. When he is in a park or on a beach or where he can't hurt himself he does not tend to use the stick until he gets tired. He does not use it to walk around the home. 61The plaintiff's condition is comprehensively discussed in a report of August 2011 from Dr Cordato, a specialist neurologist who gave evidence and was cross-examined. The defendants relied on a number of reports which, in sum, suggest that the plaintiff is in respect of both his physical psychological presentation significantly less disabled than he asserts and Dr Cordato accepts. I have read all the medical reports, of course, but I prefer the evidence of Dr Cordato. I do so for two main reasons. The first is that he impressed me as an objective, thorough and careful witness. I note in this respect that Professor Watson, also a specialist neurologist, whose report was tendered by the defendants, accused (though attempting diplomatic language) Dr Cordato of lacking objectivity. It is one thing to differ with a colleague's opinion, quite another to question his professionalism. The second reason is that Dr Cordato is the plaintiff's treating neurologist and saw him on a number of occasions since October 2007. This gave him, in my view, a significantly better opportunity of examining and observing the plaintiff over something like four years than, for example, Dr Watson (and of course the other doctors retained by the defendants) who saw him on one occasion. 62The following description of the plaintiff's condition is taken, as I have said, from the report of Dr Cordato of 4 August 2011 although I think that a summary is sufficient. The plaintiff had significant symptoms of pain in a large number of joints, including his hips, right wrist and hands, ankles and feet. A bone scan conducted to investigate these symptoms identified widespread arthritic changes in these regions as well as other sites such as the sternoclavicular joint. The plaintiff complained that he had diffuse pain in many joints, including his neck, lower back and lower limbs with ongoing pelvic pain, particularly testicular. His pain was aggravated by walking up stairs. Dr Cordato considered that the plaintiff had impaired memory and concentration, reporting forgetfulness as to appointments and needed frequent reminders and difficulty with planning, organising and socialising. He is emotionally labile and can easily become upset. His significant emotional behavioural disturbances were a consequence of the accident. The plaintiff's described right wrist pain and stiffness, right elbow pain and sensory symptoms in the right lateral upper arm in a C5 nerve distribution. He has neck pain and stiffness, low back pain with difficulty walking due to pain, with pain radiating down both buttocks, more so on the left than the right, consistent with a lumbar musculoligamentous injury with referred reticular type pain. He has associated bilateral groin pain particularly in the scrotal or testicular region, relating to a lumbar sacral plexis injury from pelvic fractures. He describes lower thoracic discomfit. He has pain in peripheral joints, in particular in both knees more so on the right and a sense of imbalance. There is visceral scarring in the right posterior upper arm and right wrist. He has symptoms of anxiety and depression with previously diagnosed features of a post-traumatic stress disorder. Dr Cordato considered that the plaintiff is totally and permanently incapacitated for work. 63I should interpolate that the plaintiff was referred by Dr Cordato to a Mr McMahon for neuropsychological assessment in August 2009. Mr McMahon considered that the plaintiff demonstrated "a marked degree of cognitive impairment that is disproportionate to the severity of head injuries sustained [in his fall]". He noted that the plaintiff was "more likely to engage in tests when they are more challenging" and concluded that "[fluctuations] in performance of this type strongly suggest that non-cognitive factors are influencing his scores, making it difficult to detect and isolate any organic-related decline in cognitive functioning". 64The plaintiff has been treated, since July 2007, by Dr Burke, a consultant psychiatrist who has seen him, usually monthly, since then. He gave evidence in the trial. I thought he, also, was a careful and objective witness whose views gained weight by virtue of his treatment over some years of the plaintiff. 65Despite Dr Burke's initial view that the plaintiff's anxiety type symptoms were best regarded as part of an Adjustment Disorder caused by disability and pain associated with his injuries, when the full extent of his psychiatric symptomatology became evident over the three year period to July 2010 (the date of the doctor's last report) he considered that the diagnosis of Chronic Post-Traumatic Stress Disorder, caused by the horrifying experience of the fall was warranted. His final diagnosis is Chronic Traumatic Stress Disorder and Co-morbidity Adjustment Disorder with depressed mood. The plaintiff's psychiatric treatment under Dr Burke's care has comprised prescribing anti-depressant, anti-psychotic and mood stabilising medication with sedative features and anti-depressant augmenting medication, which has required careful adjustment and monitoring, on a background of insight based cognitive and supportively structured psychotherapy. 66In dealing with Mr McMahon's comment in his report concerning the significance of the fluctuations in the plaintiff's performance of the tests, Dr Burke did not suggest (unlike Professor Watson) that this result suggested malingering but, rather, was consistent with the plaintiff's psychiatric condition which Dr Burke had diagnosed. The doctor reported a history of extreme anxiety, and depressed mood, associated with nightmares, the avoidance of social situations, flashbacks to the accident, and exaggerated startle response, marked recent memory impairment and hallucinatory-like experience as of seeing people in his room and hearing his voice whispered. The doctor noted that insight based therapy and emotional support have helped the plaintiff, the latter particularly by way of improving his morale and helping him deal with his suicidal ideation. His hallucinations ceased after he commenced Zyprexa, a drug with anti-psychotic mood stabilising and anti-depressant augmenting properties. Dr Burke noted intermittent fluctuations in the overall severity of symptomatology, mainly of his depressed mood, but any such improvements were not consolidated which, the doctor thought, was possibly due in part to the brain injury revealed in the MRI examination. 67In his report, Dr Burke gave the opinion that the plaintiff requires ongoing psychiatric treatment for at least three years and possibly indefinitely, consisting in continuing adjustment and monitoring of his anti-depressant and other psychotropic medication on a background and supportively based psychotherapy. In view of the plaintiff's very limited gains from psychiatric and psychological treatment since the accident, Dr Burke regarded his prognosis as extremely guarded and, without ongoing psychiatric treatment, the risk of suicide was high. From a psychiatric viewpoint, Dr Burke concluded that the plaintiff was presently totally unfit for work and he could not identify any work which he would be capable of performing within the foreseeable future. 68In his evidence, Dr Burke said ongoing psychiatric treatment would be likely to be necessary for something like five years, rather than the three years mentioned in his report, aiming at gradual attenuation of consultations, moving from monthly to bi-monthly, which he thought could probably be done. He thought that the plaintiff's social isolation tended to be self-reinforcing, which made it all the more difficult to improve his wellbeing. He is particularly vulnerable to stressful situations and personal stressors, losing his temper very easily. He confirmed that the plaintiff's total unfitness for work was a permanent state. 69The doctor thought that the plaintiff would need the range of medication (mentioned above) indefinitely and possibly for the rest of his life which, of course, needed to be monitored. He thought this should be done by a psychiatrist since a general practitioner would not be expected to have adequate expertise. Dr Burke thought that if consultation with a psychiatrist was all that was necessary, after three or five years a review of the medication would be required at six monthly intervals and then perhaps after two or three more years that could be reduced to a yearly consultation. The doctor also regarded the plaintiff's presentation over the extended period of time that he had being seeing him as consistent and genuine. The plaintiff was taking oxycontin amongst other analgesia for a prolonged period and it is accepted that this induces a degree of memory impairment whilst under the influence of the drug but that when, as it were, the drug has worn off memory returns to normal if, of course, it is normal. Other medications being taken by the plaintiff are known to affect concentration. In evidence it appeared that over the 18 months to September 2011, for one reason or another the doctor had seen the plaintiff bi-monthly though the doctor felt that this "fell a little short of what I really would have liked". The doctor was extensively cross-examined about the need for and the frequency of future consultations. I thought his explanations for his opinion in this regard were entirely reasonable. 70The plaintiff also tendered reports from Dr Bentivoglio, an orthopaedic surgeon. Dr Bentivoglio concluded that the plaintiff's ongoing disability would prevent him from ever returning to work in an unrestricted capacity as a painter or indeed as a painter at all. From an orthopaedic point of view, he considered him fit only for selected duties at work and probably could only cope with them on a part-time basis. He thought that the plaintiff, were he to return to the workforce, would need to avoid activities requiring him to remain on his feet for more than thirty minutes at a time or walk more than 100 metres without resting or use his right upper limb excessively. He should have a weight restriction with his right upper limb of 3 kilograms whilst with the left upper limb the weight restriction would be 7.5 kilograms. If he were to return to the workforce, this should be a graduated return initially started with 2 hours a day 3 days a week. At most, Dr Bentivoglio expected that the plaintiff would only be capable of being employed 50 percent of the time. Even if he were able to find employment, he would not be capable of working beyond the age of 50. So far as surgery is concerned, the only indication was for removal of the internal fixation devices from his right wrist. No other surgery would be likely to improve his functionality or mobility. In conclusion, the doctor considered that the plaintiff's prognosis is poor and there cannot be any improvement in his symptoms. A report from Dr Anthony Smith, an orthopaedic surgeon was tendered by the defendants, who, in substance thought that the plaintiff had "done rather well following his orthopaedic injuries" and concluded that the limitations he demonstrated on examination were manufactured. I have carefully considered Dr Smith's report and contrasted it with the other evidence, including that of Dr Bentivoglio and the radiology reports which (to my lay mind) rather support Dr Bentivoglio's opinion than that of Dr Smith. 71I have already mentioned the report of Professor Watson, who thought that the plaintiff was malingering. I have already said why I prefer the opinion of Dr Cordato (by the way, who was not cross-examined to suggest that he had too readily accepted the history given him by the plaintiff or should have noticed inconsistent presentation). Professor Watson stated that Mr McMahon considered that there was a "lack of veracity" in the plaintiff's test performance, which was characterised by the Professor as "a deliberate attempt to exaggerate to the point where one must consider malingering". Mr McMahon's report does not seem to me to justify the Professor's interpretation of it. Rather, I think that his characterisation reflects a pre-existing view about the plaintiff. This, and the unjustified criticism of Dr Cordato has lessened the weight that I feel could fairly be accorded to Dr Watson's conclusions, especially as compared to those of Dr Cordato and (though psychiatric rather than neurological) Dr Burke. So far as the head injury is concerned, he noted that a CT scan of the brain done very soon after the accident did not show evidence of brain contusion or haemorrhage at a time when it was most likely to be picked up, although he noted that CT scanning is less sensitive than MRI. I have already referred to the MRI report which undoubtedly demonstrated, in Dr Cordato's view (which I accept) a traumatic brain injury which, although mild and not so significant at the time of the accident, can evolve over time with the development of gliosis (or scarring) and therefore demonstrate delayed changes which can take months or weeks to occur. 72In conclusion, I prefer the medical evidence adduced on the plaintiff's behalf to that adduced by the defendants. Lay evidence 73The plaintiff gave evidence of his medication, which was not the subject of dispute although, as to the future, this principally depends upon my understanding and accepting of Dr Burke's evidence as to future treatment. He is a heavy smoker. He gave evidence in a general sense of his medical condition, the doctors whom he attended and the treatment which was prescribed from time to time. Amongst other things I should add that he presently has physiotherapy about three or four times a week. Leaving aside his persisting pain and physical weakness, to which I have already referred, particular difficulties have affected his relationships. His knee pain, which appears to be getting worse over time, makes it very difficult for him to play or be active with his children (now aged five and nine). In addition to his depression, the plaintiff feels physically and mentally exhausted most of the time, which had an adverse affect on his relationship with his wife, with whom he was living at the time of the accident although not as man and wife. A year later, he went back to live with his sister for a time and now shares a house with a friend. 74Over the last two years, particularly, there has been improvement in his symptoms overall. He is able to walk more, to sit more and to move more. Early in the piece he could not carry even half a kilogram with his right hand but, as time has gone on, he can carry more and more. So far as work is concerned he speculated about using the proceeds of this action to set up a business and employ others, since he is unable to physically undertake painting or indeed any other kind of physical labour. Although he has aspirations in this regard, it is evident that he does not have the skills or experience to enable him to do so and is most unlikely to acquire them. He also said he would like to obtain work as a park ranger but I am quite satisfied that he could not undertake any work which required extensive walking, especially on uneven ground. He made no attempt to find out what the job actually required and it is clear that this, too, was simply an expression of hope, based on an unreal notion of what the work might involve. He made application in February 2010 for a contractors license, explaining, "because I went through the trouble of first getting that contractors license, I didn't get it easy and I'm not going to lose it easy". This is entirely understandable but I am quite sure that he cannot work as a contractor at present and is most unlikely ever to be able to do so. 75The plaintiff says that most days (as I understand his evidence) he walks round the house or watches television but for 3/4 of the day he stays in his room lying on the bed and, as I understand, mainly staring at the ceiling. He does drive a car and goes shopping from time to time. Occasionally he goes fishing, sometimes he goes to a nearby coffee shop and will spend perhaps an hour or even more depending on how he feels. He visits his children on five or six days each week, mostly in the evenings, staying at least two hours. On occasions he has stayed overnight. Although his ex-wife would make a meal at least for herself and the children, he has not eaten there except rarely because he does not like the fast food they eat. When he goes to the coffee shop at the shopping mall, which is once a week usually on Saturday he spends time with acquaintances who are otherwise unknown to him. I examined video of him on one of these occasions. I did not observe anything in his behaviour that led me to doubt his evidence. Although he can stand, and indeed does so during these times, he has to change his position frequently and leans on his walking stick, occasionally leaning on a nearby support. History before the accident 76The plaintiff was born on 17 December 1975 in Sydney, growing up in the Dulwich Hill area. He went to primary and high school, completing his studies during the course of year 11 in 1994 when he went to live in Syria with his parents for approximately three years. Whilst he was there he did part-time work from time to time, generally assisting relatives who were involved in various trades including plumbing. At the end of 1997 the plaintiff returned to Australia and went to Canberra for just over a year when he began to do painting work, assisting his cousin who had a painting subcontracting business. He then returned to Sydney and worked with another cousin in the subcontracting painting business for a year or so. It was during this time that he began, as he said, to become properly skilled as a painter. After this, he worked for several painting companies from time to time. In 2001 he met his ex-wife and they married, having the first of their two sons in December 2002. Before this time he had drifted between casual employment as a painter but after the birth of his first child he sought full-time employment. In about 2004 or 2005 he obtained his painting license intending to work full-time as a painting subcontractor. He then worked for various companies sporadically or intermittently for short periods until about mid 2006 when he started to work more regularly and he was able to cease reliance on unemployment benefit. These jobs included working as a security guard performing crowd control duties at a hotel, part-time for about eight months in early 2006. He had obtained a sub-agent's license to be a security officer but it expired. He said that he could not now do that work because it requires standing for long periods of time. He can stand probably he thought for two, three, four or even five hours but some security jobs also required continuous walking, which he was not able to do. In early 2007 he was introduced to Mr Kahla who was in need of painters to work for him on a full-time basis. He started to work at the Greenwich site where the accident occurred. 77The plaintiff has suffered physical injuries, including fracturing two or three ribs and injuring his lower back when he fell off a ladder in about October 2002. He was treated by his general practitioner and referred to an orthopaedic surgeon. He took medication during the periods of time he was suffering from back pain. As it happened, he had first noticed the onset of minor intermittent lower back pain while working in Syria when he was a young man. The plaintiff gave evidence that these problems subsided over time. There was a time when he suffered from depression sufficiently to warrant medication but I am satisfied that he was not affected by this condition by the time of the accident. Submissions on damages 78Counsel for Parkview adopted the submissions on damages made by Mr Cavanagh SC on behalf of Erect Safe. Mr Cavanagh submitted that there "is not much dispute as to the extent of the physical injuries... [but there] is a doubt as to for how long the depressive state will continue". This candid (and appropriate) concession has simplified my task somewhat but, as would have appeared from the preceding discussion, at all events, I prefer the evidence of the plaintiff's experts both as to the plaintiff's physical disabilities and the psychological damage arising from them. As to the physical injuries and especially the resulting pain, it seems to me more probable than not that this is unlikely to improve. As to his psychological state it is not merely one of depressed mood, as is clear from the evidence of Dr Burke which I have summarised above. Furthermore, the disablement which it describes is closely linked to his physical disabilities. Accordingly, the probability is that he will remain psychologically fragile and in need of care indefinitely, although his condition might well improve somewhat. The reference to the three years, extended to five years by Dr Burke's evidence, did not suggest complete recovery after that period but, rather, on the hope that the frequency of consultation with a psychiatrist might be able to be reduced. 79The plaintiff submits that, in respect of non-economic loss the appropriate compensation is 75 percent of a most extreme case. Whilst the defendants submit that 50 percent of a most extreme case is appropriate. It is impossible to disguise the incommensurate nature of this assessment but I am satisfied that the appropriate figure falls between these two assessments. The maximum amount under this head is prescribed by the Civil Liability (Non-economic Loss) Order 2010 to be $535,000. I assess the plaintiff's non-economic loss at 65 percent of a most extreme case, namely $347,750. Economic loss 80The plaintiff was born on 17 December 1975 and, accordingly, is now aged 36 years and 11 months. The years to retirement at age 67 are 31. 81In my view, the plaintiff is totally incapacitated for all forms of work in the future although he may be fit for simple tasks on a part time basis. Overall, taking together his physical and psychological problems I consider that he is totally incapacitated for work and is unlikely ever to be able to return to the workforce and this has been the position since the accident. 82Although it is true that the plaintiff's previous work history did not show constant employment, I do not doubt that he had intended to remain working for Mr Kahla as long as work was available and there is no reason to think that, by and large, he would not be able to continue working for Mr Kahla into the foreseeable future or, it might be, for some other employer, if not striking out on his own. That he desired to work I think is clear, especially having regard to his obligations in respect of his children. The suggestion that he might be able to obtain employment as a ranger shows, as Mr Dooley SC submitted on his behalf, that the plaintiff lacks insight into the realities of his condition. Mr Cavanagh SC's submission that the plaintiff might be able to undertake some part-time non-manual (remunerative) work is, I regret to say, unrealistic. So far as the plaintiff's past loss of earnings is concerned, it is submitted on the plaintiff's behalf that (relying on Mr Kahla's evidence, which was not sought to be controverted) he was earning $800 net per week. At the time of hearing, namely September 2011 the current pay for painters was $900 net per week. It is appropriate therefore over the period between the accident and judgment to allow $850 per week for 292 weeks yields $248,200. Past superannuation, calculated at 11% of the net total equals $27,302. 83In respect of future economic loss, I allow $900 a week less 15% for vicissitudes plus future superannuation at 11%. Medical expenses 84Past out of pocket expenses have been paid by the workers' compensation insurer and agreed at $164,033. It will be necessary to make a further adjustment in the event that further medical and treatment expenses have been incurred. 85In respect of psychiatric treatment, as I have mentioned, this was provided by Dr Burke, generally monthly but in 2011 bi-monthly. I accept Dr Burke's evidence that this was the result of a number of accidental circumstances and did not provide an adequate level of care. In the end, I understood Dr Burke's view to be that the monthly visits could be reduced to bi-monthly appointments after three years and, thereafter, bi-monthly consultations would extend for at least another two years. After this period consultations bi-annually would be necessary for something like a further two to three years in order to monitor the continued effectiveness of the "cocktail of drugs" taken by the plaintiff. After this period he thought that an annual visit would be sufficient. Dr Burke was cross-examined about the plaintiff's need for Seroquel and conceded that he would be hoping to reduce the dosage but that it was presently necessary and in all likelihood would be required for something like 10 years into the future. Accordingly, the plaintiff claimed monthly psychiatric consultations for a period of three years at $220 each. It seems to me that this is appropriate. He also claimed bi-monthly psychiatric consultations for a further two years (deferred by third years). Again I think this is reasonable. Allowance should also be made for bi-annual psychiatric consultations for a further three years (deferred by five years) and annual psychiatric consultations for his life expectancy (deferred by eight years). So far as future medication is concerned he currently requires two Oxycontin per day, costing $2,870.46 a year, two to three Endone per day, costing $1,021.09 a year, two Lyrica a day costing $2,600.62 per year, two Avanza costing $1,258.03 a year and five to six Seroquel costing $7,634.58 a year, one Nexium a day costing $674.03 a year, one Hypnordorm a day costing $316.82 a year and two Epilim a day costing $637.43. The total sum per year of his current medications is $17,013.06. 86I am satisfied that more probably than not the plaintiff is likely to continue to need this medication into the future although it may be that from time to time the "mix" will need to be changed. Excluding Seroquel, and rounding up the calculation slightly, the appropriate annual rate is $9,380. There was evidence about the probability that, in due course, Seroquel will be replaced by generic brands which will cost less and possibly on the PBS system. The plaintiff proposes a 25% reduction to take account of this possibility. The evidence about both of these possibilities is, to say the least, exiguous but I think that the concession made on the plaintiff's behalf is reasonable with the consequence that (rounding up slightly) the cost of Seroquel for the future should be calculated at the rate of $5,730 per annum. 87In respect of other medical treatment, it appears to me that an allowance should be made for the plaintiff to be reviewed by Dr Cordato twice a year and that he be encouraged to attend a pain clinic. Certainly he would need ongoing supervision, ideally through a pain clinic or alternatively by his GP and a specialist because of the changing effectiveness of pain killing medication when taken over time, whether being seen by Dr Cordato as his neurologist or the pain clinic. It seems to me that an allowance should be made of two visits a year (rather than the three a year sought on the plaintiff's behalf). The plaintiff also needs to see his general practitioner on a monthly basis because Oxycontin and, as I understand it, similar drugs are not able to be the subject of repeat prescriptions. Accordingly, I allow the following treatment expenses: two consultations a year with a consultant neurologist or pain specialist at $220 each; a monthly consultation with a general practitioner at the cost of $65 per consultation; continuing physiotherapy comprising ten sessions per annum at $80 per session and imaging studies amounting to $6,000. A claim is also made on the plaintiff's behalf for pain clinic consultations at the rate of six per annum, costing $220 per consultation. It appears that the plaintiff has not undertaken any such consultations in the past and there was no evidence from him that he felt such a regime of consultations would be useful, a judgment, however, which I think is likely to have been affected by his depressed mood. I think nevertheless reasonable, to consider that as he gains improved insight into his condition that he will likely seek help for his pain in a structured and directive way. Accordingly, I think it appropriate to make an allowance of $7780 for the ADAPT Program at Royal North Shore Hospital to which Dr Patrick referred. Personal domestic assistance and care 88The relevant test is provided by the Civil Liability Act 2002 which provides as follows - Section 15(2) (2). No damages may be awarded to a claimant for gratuitous attendant care services unless the court is satisfied that: (a) there is (or was) a reasonable need for the services to be provided, and (b) the need has arisen (or arose) solely because of the injury to which the damages relate, and (c) the services would not be (or would not have been) provided to the claimant but for the injury. There is no antecedent medical condition or history requiring the need to provide attendant care services other than those caused by the accident. The issue here is whether the extent of the need for services as claimed by the plaintiff is "reasonable". 89It is not disputed that, by reason of the physical and psychological injury the plaintiff required domestic and personal assistance and care in the past and will continue to do so into the future. The controversy concerns the extent of that care. The evidence adduced on behalf of the plaintiff from various doctors, including those who have been treating him, varied between 6 to 8 hours a week (Dr Cordato) up to 14 hours a week plus lawn mowing (Dr Adler, a rehabilitation physician). Dr Patrick, a general surgeon, estimated the necessary care at 10 hours a week whilst Dr Bentivoglia agreed with Ms Tchan, an occupational therapist that 9 hours a week was appropriate. Ms Tchan who was not required for cross-examination, reported the need (all per week) at 27.7 hours from 18 August 2007 to 16 November 2007, 18.3 hours from 17 November 2007 to 16 May 2008, 11.2 hours from 17 May 2008 to 21 August 2009 and 9.1 hours from 22 August 2009 to 12 August 2010. 90Part of the debate between the parties concerns the need of the plaintiff for assistance in relation to his meals. He gave evidence of eating take away food which he would, when necessary, heat up at home using the microwave. In this context, as indeed the context of ordinary domestic tasks such as cleaning, washing and ironing are concerned, it is necessary to consider not only the plaintiff's physical disability but also his psychiatric state. Dr Cordato conceded that there was no reason why the plaintiff could not cook but he said that his pain would create difficulties for sweeping and vacuuming, window cleaning and the like. Dr Cordato thought that the plaintiff could manage some light shopping and, indeed, the plaintiff conceded that this was so. Concerning the cooking, the doctor said - I think the main reason I mentioned [6 to 8 hours per week of domestic assistance] is I just have some concerns with the quality of what he going to do, that is, sure he can cook but he might end up just, you know, toasting something rather than actually preparing food. He may elect, if you just left him to his own devices, to buy takeaway food all the time, not to actually go and pick healthy appropriate sort of products to prepare a meal. And then I am not saying that he is meant to bake a roast and do a lasagne or whatever, but I think the quality of what he is going to do if he was left to his own devices would be sub-optimal, so ... I have taken that into account. 91Dr Cordato agreed that if all that was being done for him was the household chores and outdoor chores, the plaintiff would only need two or three hours a week of assistance. He conceded that the plaintiff can do simple cooking. 92The plaintiff's sister, Ms Mustafa, gave evidence on his behalf as to the various tasks that she undertook on behalf of the plaintiff and the time that was taken to perform them. I am satisfied that, were it not for the plaintiff's injuries caused by the accident, she would not have undertaken this work. These tasks were usually undertaken two days a week, mainly Mondays and Fridays and, on each day, comprised cleaning the bathroom, vacuuming the bedroom and living areas, laundering, changing the bed linen and making the bed, cleaning and dusting, including the windows, and cooking, which she did at home and brought to the plaintiff's premises. Leaving aside the cooking, the time taken by Ms Mustafa to undertake these tasks was, overall five hours a week. I do not propose to analyse each task closely. This matter ought to be approached, in my view, on a broad, commonsense basis. I entirely accept that Ms Mustafa told the truth as to both the work that she did for the plaintiff and the time it took her. Nevertheless, it seems to me that the obvious care and meticulousness which she brought to these tasks reflected her own high personal standards and her personal sense of responsibility for the plaintiff, her brother rather than what was reasonably necessary. In my view, a reasonable allowance for domestic care of this kind is three hours a week. I should deal with the meal preparation undertaken by Ms Mustafa. The food she prepares is Middle Eastern food which, she knows, the plaintiff will eat. Fresh food preparation undoubtedly takes more time than merely warming up leftovers or putting frozen food in the microwave. I should add that I do not understand that Ms Mustafa prepares all the meals eaten by the plaintiff but, I think, most of his substantial meals. The middle eastern cuisine cooked by Ms Mustafa can be time consuming and many dishes require a substantial degree of preparation. Again, the question is what is reasonable so far as the defendants' liabilities to compensate the plaintiff are concerned. My view is that three hours a week for food preparation is reasonable. It is also necessary to take into account travel from Ms Mustafa's residence to that of the plaintiff which takes an hour for the round trip. These figures result in a total for domestic care of eight hours a week. 93The domestic and personal assistance provided to the plaintiff from August 2007 to March 2009 was provided equally by his ex-wife and herself so that, as his ex-wife decreased the level of care, (as I understand Ms Mustafa's evidence) her responsibility increased commensurately. Of course, the level of care was much greater in the earlier period, as reflected in Ms Tchan's report. The plaintiff was not cross-examined to suggest that the information that he gave to Ms Tchan upon which her report was at least in part based was not true. Accordingly, I think it appropriate to adopt her calculations. 94It was submitted by Mr Cavanagh SC that, since the plaintiff is sharing his accommodation and this is likely to continue into the future, the person with whom he shared might also benefit from the provision of services by Ms Mustafa. However, I accept the submission made on behalf of the plaintiff that the mere fact that this is so does not reduce the plaintiff's need for the domestic care. I would accept that the co-tenant does benefit from the work that Ms Mustafa does but, if he were not present, the same amount of work would need to be done. 95For the past, I make the following award (adopted from Mr Dooley's written submissions), relying on the report of Heather Tchan: (a) 17 August 2007 until 12 August 2010 - (i) Stage 1: 40 hours pw: $23.24 ph x 40 hours x 6.8 weeks = $6,321.28 (ii) Stage 2: 27.7 hours pw: $23.23 ph x 27.7 hours x 12.9 weeks = $8,300.78 (iii) Stage 3: 18.3 hours pw: $23.45 ph x 18.3 hours x 12.8 weeks = $5,492.93 $23.04 x 18.3 hours pw x 12.9 weeks = $5,439.05 (iv) Stage 4: calculated at different hourly rates for 11.2 hours pw (see "Stage 4" page 233 Exhibit F) = $17,276.20 (v) Stage 5: 9.1 hours pw (at various gratuitous rates) (Exhibit F page 233 "Stage 5"): 9.1 hours pw x 50.5 weeks = $11,313.99 (b) 13 August 2010 until March 2011 (when the plaintiff leaves the home of Rouba Dibb) - gratuitous care at a rate of 8 hours pw x 28.57 weeks at $24.24 ph = $5,540.29 (c) 1 March 2011 to 24 September 2011 x 13.5 hours pw x $24.75 ph = $9,880.00 Total $69,564.52 96In respect of the period from 1 March 2011 to judgment, however for the reasons I have given I allow eight hours a week at the rate of $24.75 per hour. 97So far as the future is concerned, it is reasonable to consider it likely that Ms Mustafa will find it increasingly difficult, in light of her own domestic circumstances, to continue to assist the plaintiff at least to the extent to which she is presently undertaking that task. Accordingly, the compensation payable to the plaintiff in order to ensure appropriate ongoing domestic assistance should be calculated on a commercial basis which, as I read Ms Tchan's report, is $37 an hour for 6 hours a week. 98So far as handyman, house and garden maintenance and lawn mowing are concerned, which would be required if and when he purchases a house with a yard the amount assessed by Ms Tchan is 1.2 hours at $55.55 an hour. It is unclear whether the plaintiff will purchase such a house but, usually, a tenant would be expected to maintain the yard in reasonable order and undertaken light repairs and maintenance. It seems to me that an hour a week is sufficient to cover this item. 99I think it is fair to predict that the plaintiff's condition will slowly improve over time although as he gets into his 60s his condition, as a result of his injuries, is likely to worsen. Doing the best I can, it seems to me that I should deduct 15 percent from the total provision for future care. 100Mr Tchan recommended the purchase of equipment such as a kitchen trolley, long handled dustpans and brooms, a lounge chair and the like which seemed to me to be reasonable. The annual cost of these items is $197.30. Rounding up slightly, it seems to me, that I should allow the sum of $200 a year under this head. Ms Tchan considered that the plaintiff would benefit from undertaking activities to increase his physical fitness and help him gradually incorporate more community and social activities into his daily life. She proposed that, as he is very de-conditioned and gradually becoming more so, requiring help with motivation, he should have the assistance of a personal trainer for up to 12 sessions. A trainer charges between $85 and $95 an hour. I consider that this proposal is an appropriate one and allow $90 an hour for 12 sessions. Ms Tchan also points out, and I agree, that the plaintiff will need to attend a gymnasium to maintain fitness. Annual membership amounts to $850. In my view, this is, payable for his life, an appropriate part of the compensation for the plaintiff. 101In respect of life expectancy, there was evidence that heavy smokers (such as the plaintiff) if they persist are likely to significantly lessen their life expectancy. Dr Watson noted a CT angiogram of the upper limbs showing small vessel disease and a diagnosis of Buerger's disease which is, as I understand it, a vascular condition which is worsened by smoking. Dr Cordato agreed, in substance, that life expectancy would be reduced significantly, perhaps by up to 10 or 15 years, if a patient diagnosed with chronic obstructive pulmonary disease in his thirties (such as the plaintiff) were a heavy smoker; in addition, if he suffered from Buerger's disease this would have an added adverse impact on life expectancy. The difficulty with applying this evidence to the plaintiff's life expectancy is that the median life tables which are used to calculate life expectancy for present purposes obviously take into account a large number of variables as to which there is no evidence. An adjustment could only be made, therefore, upon the basis of an assumption that the conditions affecting the plaintiff's life expectancy are not taken into account. In the absence of evidence to that effect, I do not think I can make this adjustment. Conclusion 102There must be judgment for the plaintiff against the first and second defendants, and for the third defendant against the plaintiff. As to the respective contributions of the first and second defendants, in default of agreement, the matter will came back before me for determination. The parties are to calculate the amount of the verdict in accordance with my judgment and file an order in due course dealing with the total award of damages, the respective contributions of the first and second defendants and the cross-claims. In the absence of agreement, I give leave to apply on three day's notice. As to costs, in the absence of agreement, the matter is to be listed before me by arrangement with the List Manager. If the parties are agreed, I will decide the issue on written submissions to be filed and served, the first to be made by the plaintiff and the other defendants to respond within two weeks.