Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem [2018] WADC 164 | Case summary

Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem [2018] WADC 164 | Case summary | Zoe

[41]

On 12 August 2014 Mr Thompson was working as a roof carpenter on a house being built by the defendant. He was not employed by the defendant.
He was 'marking up', a process which involved walking along the wall plates on the top of the brick walls and marking the wall plates to show where the roof rafters would later be fixed.
The house design was such that it included a porch area at the front of the house. An isolated brick pier (pier) with an unfilled cavity had been constructed and Mr Thompson walked across a wooden beam which traversed at a straight angle, the span from the brickwork of the master bedroom to that pier. A second wooden beam traversed the span from the pier to the brickwork of the garage so that it ran at a right angle to the other wooden beam.
Mr Thompson says he had his right foot on the pier, his left foot on the bedroom beam and took a step intending to step onto the garage beam when the pillar collapsed and he fell 2.4 m on to the sand below. He suffered a comminuted distal radial fracture to the left wrist with an associated tear of the triangular fibrocartilage complex as a result of the fall.
Mr Thompson alleges that he fell as a result of the pier collapsing. He says the engineering plans for the house required the pier's cavity to be filled with mortar, cement or bricks and mortar and says that if this occurred the pier would not have collapsed. Mr Thompson brings this action against the defendant, both in negligence saying that the defendant breached the duties it owed him as the principal contractor responsible for building the house and also under the Occupiers' Liability Act 1985 (WA) (OLA) saying that the defendant breached the duty it owed him as occupier of the building site.
The defendant accepts that they owe Mr Thompson a duty as an occupier of the premises and as principal of the workplace but deny breaching that duty at common law or under the OLA.
The defendant says that the engineering plan did not require the pier cavity to be filled and even if it did, they are not liable for the conduct of the independent contractor (bricklayer) who constructed the pier which collapsed.
In any event the defendant says there were safer ways for Mr Thompson to perform his work that did not involve him stepping on the pier. Those ways were to utilise the trestles and planks present at the worksite or by securing the beams and placing and securing joists from the house to the beams. The defendant says that by choosing to 'mark up the beams' by standing on top of the beams and pier Mr Thompson adopted an unsafe system of work.

[44]

Mr Thompson was born on 15 December 1989. He trained as a roof carpenter under his father and worked as a roof carpenter for approximately eight years before the incident. During that time he had worked on hundreds of porch roofs and he said he knew how to work safely and was capable of working unsupervised.
On 12 August 2014 he attended the site in Bullsbrook with six or seven other persons from TJO Roofing. He said it was the roofing team's first day on the site. At that time he had been working with TJO Roofing for approximately two years, and although he regarded himself as an employee, he said technically he was a subcontractor.
Mr Thompson said that he started cutting in the wall plates which involved laying the plates on the brickwork so they could be nailed into the roof fittings.
He then commenced to mark out the roof span which involved measuring the length of the roof and rafters and marking the positions on the wall plate where the rafters would later be affixed.
He used a ladder to gain access to the top of the brickwork at the garage area and then walked around the brickwork in a clockwise direction marking the wall plates as he went. To assist him in this task he had his tape measure, crayon and nail bag.
During this process Mr Thompson was literally standing on the brickwork and eventually he came to the front of the house where a beam was already in position, effectively covering the span from the brickwork at the corner of the master bedroom to the pier located on the porch area situated at the front of the dwelling and another beam which was also in position went from the pier back to the brickwork at the garage area of the house. Mr Thompson said the beam was about 63 mm wide and there was a distance of approximately 100 mm between the edge of the beam and the edge of the pier.
Mr Thompson said that Mr Knox had installed the beams and they were nailed together where they joined on the pier and the other end of the beams were nailed to the wall plates and braced with a temporary base. Mr Thompson said he saw the nails connecting the beams to the wall plates as he walked over the top (ts 35, 41).
Mr Thompson said that he walked across the beam which traversed the span from the master bedroom to the pier and marked it up. He intended to step onto the beam traversing the span from the pier to the garage. He said he 'shuffled around and as he went to take that step onto the porch beam he just remembered being on the floor' (ts 19). He said he did not lose his balance or push off the pier and said that all he did was take a step to walk off the pier as he was intending to go onto the beam leading to the garage and the pier collapsed.
He said he had his right foot on the pier on the house side of the beam and his left foot on the beam running from the bedroom and took a normal step onto the garage beam and it went just behind him (ts 53). He denied taking a leap or pushing off (ts 53). He was unsure of which foot he led with and agreed that the beam was narrow.
He said he could not see if the cavity of the pier was void because it had the beam across it.
Mr Thompson said the pillar was about 2 1/2 m from the ground.
Mr Thompson said that the manner in which he performed the task of marking up the beams (that is from the top, by standing on the wall plates, the beam and the pillar) is the way that he normally marked up and over the years he had observed other roof carpenters marking up that way.
Mr Thompson denied that he pushed on top of the brickwork of the pier, the effect of his evidence was that he had his right foot on the house side of the pier and his left foot on the beam coming from the master bedroom to the brick pier and had stepped from that position intending to move on to the other beam when the pillar collapsed and he ended up on the ground.
Mr Thompson said that you do not normally position ceiling joists before you mark out the rafters and even if the ceiling joists were in position he would not step on them because they are only nailed at one end and the other end would be sitting on the brickwork unsecured.
He said in his experience trestles and planks were not used to mark out in the situation that he found himself. He said that the trestles and plank that had been used to erect the beams had been removed before he commenced marking out the beams and had been packed away on the truck.
Mr Thompson said that the marking out of the beams was the last task of the day as it was the boss's birthday and they were going to the pub to celebrate.
Mr Thompson said that at the time of the incident he did not have any handhold or any fall arresting equipment.
Mr Thompson said he landed on the ground between the porch and the pier and the beams landed on his neck and back. He said he was unconscious on the floor (ts 55) and 'woke up', and thought he was paralysed because he could not stand up as the beams were on his neck (ts 23).
Mr Thompson said that a building supervisor had not been on the site that day.
After the incident he was assisted up by a work mate and taken to Swan District Hospital where they tried unsuccessfully to relocate the wrist. He said he woke up during that procedure and was in extreme pain. He was then taken to Sir Charles Gardiner Hospital where he remained overnight and underwent surgery the next day. After discharge from that hospital he wore a hand cast for a couple of weeks and required hand therapy. He underwent further surgery on 19 January 2015, 21 September 2015 and in August 2016.
Mr Thompson said he made a partial return to work in March 2016. In about May 2016 he was certified as fit to perform his pre-injury job. He said at that stage his wrist still clicked and clunked and whilst he was originally able to manage, after a period of time it just got hard.
In July or August 2016 he agreed to leave TJO Roofing. He said Mr O'Regan had been a friend of his and they were having disagreements because worker's compensation was not reimbursing Mr O'Regan for his wages and he left before things got out of hand and he lost a friend.
Mr Thompson denied he told Mr O'Regan that he would not work on a particular date because he was studying. He also denied saying that he had been terminated due to the economic downturn.
Mr Thompson said that during his rehabilitation he undertook a 12 month course and was re-trained as a project manager (in August 2017) but has been unable to obtain employment in that role due to his lack of experience. He also tried to obtain work as a site manager but had not been successful for similar reasons.
Mr Thompson said he had applied for positions as a forklift operator but many of those positions also involved working as a factory hand and other forklift jobs involved moving shipping containers which had a component of physical work that he was unable to perform and therefore these jobs were not suitable.
He said he did not see himself working as a customer service officer or a shop assistant (ts 27) because he wanted to feel important and be able to progress in a company rather than just stand at a desk. He said he would like to try something that he enjoyed. Mr Thompson said he did not want to be bored and liked to be active. In cross-examination he said although he had not thought of such a position, he had applied for a sales type position with Bunnings.
Mr Thompson said that before the incident he was taking medication for depression because two of his friends had died, one in a motor bike accident, the other committed suicide. He said since the work incident his mood had become more erratic and he was taking stronger antidepressants.
Mr Thompson said the incident had changed his life as he used to go to the gym sometimes twice daily and play football but was now not able to do so because of the pain and aggravation to his wrist. His relationships were also affected because he did not have the finances to socially interact as before.
Mr Thompson said he still had his rehabilitation 'stuff' at home (ts 66).
At the time of the incident he was earning $1,070.18 gross or $863.18 net per week.
His current medication involved painkillers, anti-inflammatories and antidepressants and on occasions he was required to wear a wrist splint which needed to be replaced every three months.
Mr Thompson described his current disability as tiredness of the wrist which he further described as cramps and soreness such that sometimes he could not use his wrist.
Mr Thompson's wrist had visible scarring approximately 8 cm in length on the inner wrist and a 14 cm in length on the ulna aspect of the wrist which he said was itchy. Regrettably he had been subject to some distressing comments about the direction of the scar.
Mr Thompson said he had continually applied for jobs and produced (exhibit 3) 53 applications for employment that he had made online. He accepted that by applying for some of the positions he could be described as being ambitious.
Mr Thompson's evidence was criticised by the defendant as unreliable on a number of bases.
The defendant points out that Mr Thompson's evidence that he could not see into the pier's cavity and ascertain whether it was filled was contradicted by other witnesses.
Mr Thompson said he could see the rod sticking out of the cavity, but would not have been able to see if the cavity was filled unless he got down on his knees and looked (ts 47, 48). He said he could not see past the beam because the beam was sitting directly over the cavity. Mr Knox said a roof carpenter would be able to work out easily by looking at the rod whether the cavity had been filled (ts 159). Mr Tarry's evidence was that if a roof carpenter was standing above the pier he would be able to see if the cavity was filled. I accept the evidence of Mr Knox and Mr Tarry in this regard, however in my view this inaccuracy does not significantly dent the credibility of Mr Thompson.
Mr Thompson denied that he had pushed on the top of the brickwork or pier (ts 33, 51) or applied force to the pier (ts 52). Mr Van Der Meer's evidence was that the pier toppled because it had a horizontal component of force applied to it. In my view there is no substance in the criticism of Mr Thompson's evidence in this regard. The substance of his evidence is that he was moving off from the pier or stepping off and I accept Mr Van Der Meer's evidence that in so doing he created horizontal forces to the top of the pier. Mr Thompson was simply stressing that all he did was take a normal step (ts 52). He denied he used a deliberate pushing off motion. The effect of Mr Thompson's evidence was that he denied pushing off the pier or using extra force other than that inherent in the action of moving off or stepping off the pier. I find as a fact that Mr Thompson did not leap or push off the pier. Just prior to the incident his right foot was on the pier on the house side of the beam and his left foot was on the beam running from the bedroom to the pier, he took a step into the garage beam and the pier collapsed. I accept Mr Thompson's evidence in this regard.
Further, it was suggested that Mr Thompson's evidence (ts 19, 20, 53) was deficient because his description of how he fell differed to what he told others previously. The medical notes refer to a 'fall from roof into bricks/sand' (exhibit 8.5) or that he 'fell off roof' (exhibit 8.6) or that 'part of the roof standing on collapsed' (exhibit 8.7). I am not persuaded that the description in the medical notes establishes any or any meaningful inconsistency with the evidence. Dr Slinger's note is that Mr Thompson told him he 'was attempting to step backwards' when the collapse occurred. Mr Thompson denied he said this to Dr Slinger. Either Dr Slinger's note is in error or Mr Thompson made an inconsistent statement. Taking it at the highest for the defendant that Mr Thompson made an inconsistent statement such an inconsistency, made some two and a half years after the incident, does not cause me to doubt the accuracy of Mr Thompson's evidence.
Mr Thompson says he lost consciousness as a result of fall and woke up with the beams on his neck and back (ts 23, 55). The notes from the Swan District Hospital record Mr Thompson denying he hit his head when he fell (exhibit 8.5). Sir Charles Gardiner records show 'nil' loss of consciousness and make no reference to items falling on his neck or back (exhibit 8.6). Dr Overmeire's notes record Mr Thompson as saying the beams landed on his back and neck (exhibit 8.31). I accept that in light of the medical importance of a loss of consciousness that issue would have been specifically raised by the note takers at the two hospitals and that Mr Thompson replied in the manner indicated in the notes. An inconsistency is established. Mr Thompson I find did not lose consciousness and his evidence in this regard is in error. In the circumstances where the incident occurred suddenly and unexpectedly, I place little significance on this inconsistency.
Mr Van Der Meer's note after his meeting with Mr Thompson was that,

[46]

Mr Van Der Meer's evidence was that the reference to 'instructed to place ceiling joists' was part of Mr Thompson's other duties and Mr Van Der Meer understood that what Mr Thompson had told him was that he was marking out the main beams so the roofing members, which were the rafters, could be placed in future and that Mr Thompson had been on the beams marking out the span for the rafters not standing on the beam to place ceiling joists. I accept Mr Van Der Meer's note lacks definitive precision but I accept Mr Van Der Meer's explanation of what he was told by Mr Thompson and what he intended to convey by the notes. It does not establish any inconsistency that reflects adversely on either Mr Thompson or Mr Van Der Meer.
The defendant points to Mr O'Regan's evidence at ts 202 where he says he gave Mr Thompson instructions to mark the rafters on top of the beams (ts 208, 210). Mr Thompson's evidence was that he was helping Mr O'Regan mark the roof and assisted in laying the roof plates by cutting them, then moved to marking out the roof span, then marked the rafters and creepers on the wall plate by putting a mark on the wall plate for the rafters.
Mr O'Regan agreed that Mr Thompson had been helping with wall plates (ts 210) and that at the time of the incident he had asked him to mark down the beams.
Mr O'Regan maintained that he marked out the entire house, but agreed that Mr Thompson marked out the porch (ts 211) and said it was possible that Mr Thompson had marked out the master bedroom before he went onto the porch (ts 212). Whether Mr Thompson had marked out the master bedroom before he went onto the porch or precisely what he had been doing before the incident is of little relevance. It is not in dispute even by Mr O'Regan that at the time of the incident Mr Thompson was marking out the porch area (ts 211). I find no substance in this point.
I accept Mr Thompson's evidence and find as a fact that in the process of marking up the roof he walked across the beam which traversed the span from the master bedroom to the pier and was in the process of stepping on to the beam which traversed the span from the pier to the garage and as he took a step to walk off the pier the pier collapsed. The manner in which Mr Thompson stepped was not exceptional or out of the ordinary.
If any inconsistency is sought to be established through the use of Ms Stewart's report (exhibit 8.5), I note Mr Thompson denied saying what was attributed to him by Ms Stewart. Ms Stewart was not called as a witness. Having assessed Mr Thompson's credibility, I prefer his evidence to Ms Stewart's report.
I find as a fact that the beams were nailed together virtually at right angles at the top of the pier. I accept Mr Thompson's evidence in this regard. Mr Knox effectively said that this was his normal practice. Mr O'Regan agreed that the beams had been nailed together.
The defendant says that Mr Thompson is the only person who says the beams were secured at the house end. Mr Thompson said he knew for a fact that they were nailed to the wall plates at the house end (ts 20, 21, 33, 35, 41, 43) because he could see the nails as he walked over the top (ts 35). The defendant says that Mr Tarry's evidence at ts 249 - 259 and Mr Knox's evidence at ts 151 supports the finding that there is no evidence that either beam was fixed at one end to the house. I reject this submission. Mr Knox and Mr Tarry were shown photographs taken at some unknown time after the incident and asked whether those photographs showed any evidence that the beams had attached at the house end. Evidence that there is nothing in the photographs showing that the beams were attached to the house is not evidence that the beams were not attached to the house.
The defendant points to Mr Thompsons' evidence (ts 22) that the beams were braced. Mr Van Der Meer was not told this but said Mr Thompson told him the beams were fixed in position by others (ts 121).
The defendant's closing written submission submit that 'Mr Knox's evidence that he would have connected a brace to a beam that was not the beam suggested by Mr Thompson's evidence' (ts 146 - 147). Mr Knox when describing his normal procedure said that the beams would be nailed or fixed into the wall plate at the house end. Later in his evidence he said that the beam would either be fixed into the wall plate or another brace coming down (ts 146 - 147). When shown the photographs Mr Knox said 'there would have been a brace (describing it as a temporary brace) coming off the wall plate on the side to the side of the beam' and saying it would have been secured to the wall plate and the beam (ts 152). Specifically in relation to the bedroom side of the house Mr Knox said that 'it would have been (the beam) notched over the lintel and even nailed into the wall plate or another brace coming down'.
Mr Knox's evidence on this point is not crystal clear, however whether there was a brace is not a critical issue because Mr Van Der Meer, the only structural engineer to give evidence, said that the beams would not have been unstable if they were joined together only at the pier (ts 121, 122).
I reject the suggestion, however faint, that Mr Thompson was not in the process of stepping off the pier when it collapsed, but was standing solely on the beams and the beams collapsed hitting the pier as they fell causing the pier to collapse. I accept that Mr Thompson's evidence that the beams were braced is not supported categorically by clear unequivocal evidence from Mr Knox (or any other witness) and that does cause me to scrutinize Mr Thompson's evidence more closely, however having done so, I am satisfied that in relation to the issues of what he was doing immediately before the pier collapsed his evidence can be relied upon.
I found Mr Thompson's evidence generally to be straightforward and credible. I accept his evidence on the central issue of what he was doing at the time of the incident and his working capacity.

[49]

He said that 'cast' was a universally used term in engineering and design and meant the same thing to all engineers. To cast something meant to engage it in another medium, that is, in this case to surround the rod and engage it with that medium and make it monolithic with the surrounding medium. This involved filling the cavity with mortar, cement or broken bricks and mortar so as to cast the rod into the cavity.
He said the piers can be filled with the same mortar that is used to construct the pier.
Mr Van Der Meer explained that the perpend is the vertical mortar joints between the bricks and the reference to build into the perpend applied if the pier had no cavity, however in circumstances where the pier had a cavity the structural drawing required the rod to be cast into the cavity.
Mr Van Der Meer said the pier was not constructed in accordance with the engineering design as the rod had not been cast into the pier.
He said that the strength of the pier would have been increased quite markedly if the cavity had been filled with brickwork, mortar or cement.
He said that in his 45 years' experience it was the common practice of builders and bricklayers to fill the cavity of a pier in the manner described so that it engages with the rod within the pier and thus the rod is cast into the pier.
He said that the cost of filling the pier was small at about $30 and it was an effective method of making the pier more structurally effective. He said it did not matter whether the cavity was filled with mortar, concrete or broken bricks and mortar, any such medium would effectively cast the rod into the cavity and provide a more structurally effective pier.
Mr Van Der Meer said that as the void was not filled the pier was relatively weak when subjected to horizontal components of force.
Mr Van Der Meer calculated that the horizontal force required to be applied to the top of the pier to crack the mortar bed joints (a cracked hollow pier) near the base of the pier was approximately 33 kg when the mortar had achieved full comprehensive strength, which would take some weeks after the mortar was laid. In his view this brick pier had not reached the stage where the mortar had achieved full compressive strength. Once the mortar joints were cracked, the influence of the mortar strength was terminated and the stability of the pier is reliant on its self-weight.
Mr Van Der Meer said that the horizontal force required to topple a cracked hollow brick pier was approximately 22 kg and the failure would be sudden and without warning. The horizontal force required to topple a reinforced pier would be approximately 71 kg.
Mr Van Der Meer's calculations clearly show that if the pier had been filled with concrete or mortar it would have been stronger and could have supported a much higher horizontal force. On his calculations the force required to push over or topple a reinforced pier was more than three times the force required to push over a hollow or unreinforced pier.
Mr Van Der Meer said that if the pier cavity had been filled in the manner he referred to the horizontal forces applied by Mr Thompson as he attempted to move back to the main wall of the house would not have been sufficient to cause the pier to fail.
Mr Van Der Meer said the unfilled pier was laterally too weak to support the application of even low intensity lateral loads such as those applied by the feet of roof carpenters. He said the stability of an isolated pier is not ensured by connecting a rod within a hollow core of a pier to the timber roof being supported on the pier.
Mr Van Der Meer said it was not common practice for roof carpenters to use scaffolds to install and measure rafters and beams on an isolated brick pier particularly on single storey house constructions and it was not practical to provide scaffold access to all parts of roof framework being constructed by roof carpenters.
He said he often witnessed roof carpenters standing on brick piers and it was common practice for roof carpenters to traverse wooden roof beams which were partly supported by isolated brick piers. He said it was quite normal for roof carpenters to walk on wall plates and bearers (beams) and described the beams used on this pier as being 'rather large'.
Mr Van Der Meer said roof carpenters standing on brick piers was not the issue, the issue was the horizontal forces applied to the pier when a person was moving off the pier.
Mr Van Der Meer said the pier did not topple because Mr Thompson was standing on it but because in the process of taking his step from the pier to the garage beam, that is as he left or stepped off the pier onto that beam, Mr Thompson's body mass plus the acceleration of his step applied forces to the top of the pier, those forces had a horizontal component and the horizontal force applied was sufficient to topple the pier.
Mr Van Der Meer said the force applied to the top of the pier was effected not only by mass and acceleration but also the angle that the force was applied and the point on the pier of which the force applied. All these factors were relevant in producing the force that ultimately toppled the pier.
Mr Van Der Meer said a change in any one of those components such as a different angle or a different mass or a different acceleration or a different contact point on the pier may have meant that the pier would not have toppled. He agreed that if the step was at a different angle that could create less horizontal force and the pier may not have toppled.
Mr Van Der Meer assumed there were no horizontal reactive forces provided by the mortar in the joints of the brick pier and accepted that if the brick pier had been built on a concrete foundation without any mortar adhering the brick to the foundation, then the amount of force required to topple it would have been less than the amount required to topple the pier which had mortar adhering to the concrete foundation.
The central thrust of Mr Van Der Meer's evidence was that the pier was not constructed in accordance with the engineering design because the rod had not been cast, that is, the void had not been filled. He said that more force was required to topple a pier with a cavity that was filled than a pier where the cavity was not filled and that if the cavity of this pier was filled, the horizontal force that was applied by Mr Thompson as he stepped off it would not have resulted in the pier toppling.
Mr Van Der Meer agreed that generally tradesman would not be able to predict the destabilising force required to topple a brick pier.
In performing his calculations Mr Van Der Meer only took the force applied to the top of the pier into account, not resistance that would have occurred from the strength of the pier.
Mr Van Der Meer said installing ceiling joists would not have improved the stability of the brick pier.
He said that if the beams were stable a roof carpenter could stand on them, if not a roof carpenter should not stand on them. Mr Van Der Meer said if the beams were joined together they would be stable.
Mr Van der Meer agreed that it was safer to mark-up beams using a trestle scaffold and agreed that roof carpenters carried trestles in their car 'quite a lot.' Whilst in his report he said it was common practice for roof carpenters to traverse wooden roof beams which are partly supported by isolated brick piers, in his evidence he said that in a patio area without walls it was more common practice to use scaffold and trestles.
Mr Van der Meer agreed that he had not been told that joists or braces were in place or that an A-frame and scaffold was available nor was he told that the beams were secure to the house, although he was told that the beams were fixed by others and assumed that the beams would have been fixed to the wall.
Mr Van Der Meer's notes prepared on the day he interviewed Mr Thompson being 7 June 2016 record 'Instructed to place ceiling joists'. Mr Hancy suggested that this was what Mr Thompson told him. Mr Van Der Meer said that what he was trying to effect by the notes was that one of Mr Thompson's duties was to place the ceiling joists and his intention was to convey that Mr Thompson had told him he was marking out the main beams so the rafters could be placed in future and that at the time of the incident he was on the beams marking out the space for the rafters and he was not standing on the beam to place ceiling joists. I accept Mr Van Der Meer's explanation (ts 120). In my view, nothing of significance turns on this point.
I accept Mr Van Der Meer's expertise and evidence. He gave his evidence in a straightforward manner. His evidence was credible and cogent. He is an experienced consulting structural engineer (the only structural engineer to give evidence in the trial) with extensive experience in the building industry.

[50]

Mr Knox is a roof carpenter with approximately 30 years' experience. He works on an average of three to four houses per week. He said that Mr Thompson and Mr O'Regan had been his apprentices.
On 12 August 2014 he had been working for Mr O'Regan for around about 18 months and was at the work site but did not see the incident. After the incident occurred he saw Mr Thompson sitting on his bottom holding his wrist.
Mr Knox recalled that there were problems with the job and he thought the incident occurred when they were packing up to leave. He said the marking out was one of the last things being done.
Mr Knox could not recall if he set up the scaffold, consisting of an A-frame trestle and planks used earlier that day but thought that he 'probably did' (ts 154). He said at the time of the incident the scaffold had been packed up. He did not know when the scaffold was packed away.
In the course of his 30 years' experience as a roof carpenter Mr Knox said he had 'marked out' the beams himself and 'seen plenty of other teams do so'.
Although Mr Knox could not remember installing the beams, he said he was about 80% certain that he did so. He said he would have nailed one end of the beam into the wall plate and the other end would be sitting on top of the pier, the other beam leading to the bedroom would be notched over the window lintel, because it could not be put onto a window frame, and either nailed into the wall plate or supported by a temporary brace going from a wall plate to the beam (ts 145,152). He said the two beams would be nailed together, effectively where they meet at the pier. He agreed that the photographs (exhibits 1.134 and 1.135) provided no evidence that had occurred.
He said generally once the beam was fixed to the house end and the pier, it should be secure.
He said questions as to whether the pier cavity void was full were for the bricklayer and the supervisor, although a roof carpenter would be able to work out easily by looking at the rod whether the cavity had been filled (ts 159).
Mr Knox said a boilermaker would later come on site and fix a bracket to the hip, which is the piece of timber coming from the roof to the top of the pier, and then the rod coming out of the pier cavity would be welded to that bracket.
Mr Knox agreed in cross-examination that when constructing a porch roof to an isolated brick pier the appropriate procedure was to set up a scaffold system for at least one end of the beam and using that scaffold, place the beam between the house and the brick pier and then nail the beams at the top of the brick pier and then nail or otherwise fix the beam to the roof plate or the lintels at the other (house) end. Mr Knox said you would then mark out the joists and rafters, and attach the joists and rafters to the beams. He said this would be done whilst standing on the porch beam and the walls (ts 150).
Mr Knox was not able to tell from the photographs whether the beams that were installed after the incident were the same beams which had been installed prior to the incident.
Mr Knox said at one stage in his evidence that 80% of the time roof carpenters would stand on scaffold when they marked out the porch beams, however he agreed that if scaffolds were not used the roof carpenter would stand on the beams or the pier depending on how good their balance was (ts 154).
Later in his evidence Mr Knox said that when installing the beams you would have a trestle scaffold but said that when you were marking up when the beams were already in place, 80% of the time you would mark it from the top without scaffold (ts 159 - 160).
Mr Knox clearly gave inconsistent answers. In one answer he says that 80% of the time roof carpenters would stand on scaffold when marking out porch beams, in another answer he says that 80% of the time they would mark it from the top without scaffold.
I find that Mr Knox's evidence that 80% of the time that they would stand on scaffold was given in error as a result of misunderstanding the question or the pressures of giving evidence.
I say that because when the topic was first raised Mr Knox categorically said it was common practice for carpenters to fit the wall plates and then mark out the roof from 'the top' (ts 144) and stated (ts 143, 144) that in 'WA wholly, solely all carpenters would put the wall plate down and mark out the roof from on top' and 'in WA I think that's the way it's always been done is you plate it and then mark it first but that's my experience anyway'. In response to the question from the court 'you plate it and you mark it and you mark it from the top? Mr Knox replied 'Yes'.
I accept that Mr Knox cannot recall fitting the beam but other evidence which I accept from both Mr O'Regan and Mr Thompson establishes that he did so.
Mr Knox's answer relied upon by the defendant as establishing that there was no evidence that the beam was fixed at the end of the house has to be examined in context of the questions being put to him at that time. He was being shown photographs (exhibits 1.134 and 1.135) and asked whether after examining those photographs he could see any evidence that the beams had been fixed at the wall end.
Mr Knox's evidence of the type of beam brace that he suggested he would have fitted if one was fitted was different to the type of beam brace that Mr Thompson suggested was fitted. Mr Knox's evidence in this regard was somewhat difficult to follow. Originally he seemed to suggest that the beams at the house end were nailed or supported by a brace but then after further questioning adopted the view that there was a brace. In this regard his evidence was not clear or precise no doubt due to the difficulties he had in even recalling if he installed the beams.
Mr Knox is an independent witness in that he knew both Mr O'Regan and Mr Thompson, both had been apprentices to him and he worked with Mr O'Regan for around about 18 months to 2 years.
Mr Knox gave his evidence in an honest, straightforward manner. He is an experienced roof carpenter. He could not remember some details, not surprising in light of the number of roofs he works on weekly and in some areas his evidence lacked precision. Mr Knox was clearly a person more comfortable in his own working environment than giving evidence in court. I generally accept his evidence.

[52]

Dr Slinger is a very experienced orthopaedic surgeon and an approved medical provider for worker's compensation purposes.
He saw Mr Thompson on two occasions being 28 March 2017 and 2 July 2018 and prepared two reports dated 29 March 2017 and 2 July 2018 (exhibits 1.35 to 1.41 and 1.42 to 1.48).
Dr Slinger said Mr Thompson suffered a comminuted distal radial fracture of the left wrist with an associated tear of the triangular fibrocartilage complex disc.
Dr Slinger noted that there was an unsuccessful reduction attempt on the wrist at Swan District Hospital in August 2014. Mr Thompson was then transferred to Sir Charles Gairdner Hospital and underwent open reduction and internal fixation of the left wrist on 13 August 2014. Upon completion of that surgery his wrist was placed in plaster and Mr Thompson was required to use a splint for approximately three to four months and undergo physiotherapy.
Dr Slinger noted that Mr Thompson was able to return to work about four to six months later.
On 19 January 2015 Mr Thompson underwent further surgery whereby the metal was removed from his wrist and his wrist was placed in a splint.
On 21 September 2015 an arthroscopy, debridement, excision of the ulnar styloid ossicle, ulnar shortening osteotomy and repair of the triangular fibrocartilage complex occurred. Subsequently Mr Thompson was required to wear a splint and undergo further occupational therapy and was unable to work for approximately six months then placed on light duties and subsequently returned to full duties.
On 8 August 2016 further metal work was removed from Mr Thompson's wrist.
Dr Slinger noted that medication for pain relief, inflammation and antidepressants have been prescribed to Mr Thompson.
Dr Slinger said that when he first reviewed Mr Thompson he still suffered from pain in the left wrist in the cold weather and was likely to suffer from cramps when undertaking full physical activities.
Dr Slinger observed tenderness and pain in the area of the scarring and on the ulnar border and said Mr Thompson's lifting ability had been reduced to 20 kg, his grip strength had been reduced and his sleep was being interrupted occasionally by the pain.
Dr Slinger said Mr Thompson was able to manage all his domestic activities, although the left wrist difficulty affected his typing and restricted him from playing football and going to the gym.
Upon examination Dr Slinger noted the scarring and the tenderness over the ulnar border and noted that Mr Thompson lacked a few degrees of dorsiflexion and palmar flexion and ulnar deviation. Dr Slinger said that Mr Thompson's hand and finger movements were not affected, however the grip strength of his left hand was less than his right.
Dr Slinger said Mr Thompson would never be able to return to his pre-accident employment and was permanently restricted from any heavy labouring and restricted from lifting weights above 20 kg but could work as a project manager and do light work such as retail sales, customer service and similar light duties.
In March 2017 Dr Slinger assessed Mr Thompson's disability as a 10% loss of function of the upper limb below the elbow. When he reviewed Mr Thompson in July 2018 Dr Slinger said that Mr Thompson had a 20% loss of function of the upper extremity.
Dr Slinger said he felt that his first assessment was inadequate to assess Mr Thompson's disability so for the 2018 assessment he used as a point of reference the AMA guide to the evaluation of Permanent Impairment (ts 169) which is used in worker's compensation issues in Western Australia.
He noted that Mr Thompson was still able to manage all domestic activities, and his ability to perform household maintenance and light gardening was unaffected. Mr Thompson was required to take some medication. He did not think there was any need for ongoing medical treatment and said Mr Thompson should avoid activities which provoked his wrist and should use a wrist splint when he was involved in heavy lifting.
Dr Slinger's opinion was that surgery was not required in the immediate future but over a 20 to 30 year period there was a 50% likelihood of Mr Thompson developing degenerative changes and a 10% to 20% chance of future surgical intervention being required as a result. Dr Slinger estimated those costs in the vicinity of $15,000 to $20,000.
Dr Slinger noted in his 2018 report that Mr Thompson's pain was aggravated by factors such as cold weather, lifting weights, using a keyboard or operating an Xbox and his left wrist was weaker and felt tighter than his right wrist. Dr Slinger noted that Mr Thompson's sleep was being aggravated and that activities such as people pulling on his arm would aggravate his injury. He noted Mr Thompson suffered cracking of the wrist and itching over aspects of the forearm. He did not think Mr Thompson required ongoing medication.
Dr Slinger noted that Mr Thompson could not perform exercises to strengthen the wrist because of the pain that that would produce.
I accept Dr Slinger's undoubted expertise as a medical specialist. Whilst there is a difference between the 2017 and 2018 assessment of loss of function, I accept Dr Slinger's explanation for his reassessment in 2018.

[53]

Mr O'Regan is the proprietor of TJO Roofing, a contract roof carpentry business. Mr O'Regan served his apprenticeship under Mr Thompson's father.
Mr O'Regan said Mr Thompson contracted his services to TJO Roofing, although he paid superannuation to Mr Thompson.
Mr O'Regan said he received communication from the defendant saying that the brickwork was done and they were able to start work.
In relation to the incident of 12 August 2014 Mr O'Regan said it was his birthday and he had proposed to pack up early if possible and go off on a birthday celebration.
It was their first day on this particular job and he went to the site at around about 7.00 am. He said there were five people on the site. He instructed Mr Knox to put the beams up and he provided some aluminium planks and 1.8 m high trestles for that purpose. Mr O'Regan said he recalled the trestles were at all four points of the porch either side of the pier and on the garage and house side.
Mr O'Regan said he went up the ladder that was near the garage around about 7.30 am or 8.00 am and had been up there a long time before Mr Thompson first came onto the roof. He did not see Mr Thompson access the roof via the ladder. He said Mr Thompson helped him with the wall plates for a short period of time and then he asked him to go and mark out the beams.
Mr O'Regan said he had instructed Mr Thompson to mark out the rafters on top of the beams. He said Mr Thompson 'found it easier to mark on top of the beams'. Although he originally said that Mr Thompson got on top of the beams via the scaffold he agreed that he did not know how he got onto the beams and was just presuming that he went via the scaffold (ts 203).
Mr O'Regan said he marked out the roof however he did not mark out all the way to the porch stopping near a feature in the master bedroom. He agreed that Mr Thompson marked out the last 'little bit' and the porch area. Mr O'Regan agreed that it was possible that Mr Thompson marked around the master bedroom before he went onto the porch, although he did not think this occurred (ts 212).
He said that he saw the scaffold (trestles and planks) and it was not packed away until after the incident occurred. Mr O'Regan said Mr Thompson had no need to be on the beam or pier because the scaffold was around the beam.
Mr O'Regan said he did not see the incident but heard a noise and when he went to the area he saw Mr Thompson curled up on the sand holding his wrist. He saw that the scaffold and beams had fallen over and the pier was collapsed next to Mr Thompson. He agreed that it was possible the beams had been moved from Mr Thompson before he saw Mr Thompson on the sand.
Mr O'Regan was able to see that the beams had been nailed together because the nails were sticking out of them and they had fallen apart.
Mr O'Regan said that Mr Thompson had fallen outside of the notional porch area as had the scaffold but the beams had fallen inside that area. He did not know if Mr Thompson had fallen in that position or moved to that position after falling.
He said Mr Knox took the beams and put them in the garage and another worker removed the scaffold.
He said that either the next day or the day after that Mr Knox put the same beams up again. He agreed that although the beams put up looked like the same ones that had fallen he could not be sure they were.
Mr O'Regan said it was common practice when constructing a porch roof with an isolated brick pier to set the scaffold up around the porch, measure the span of the beams, cut and put the beams up, nail the beams to each other and into the wall plate and nail the beams at their joint points.
Mr O'Regan said the positioning and nailing of the beams would be done from the scaffold and that the marking out of the beams would also be done from the scaffold, then the joists would be put in between the beams and the rafters put into place.
He agreed that roof carpenters needed to stand on top of the pier to nail the hip of the beam and stand on the beam to nail the rafters (ts 218) and when this was done they could have one foot on the beam or one foot on the pier or both feet on the pier, however he said that when this occurred the joists were already in place and basically the ceiling was complete.
Mr O'Regan said that when Mr Thompson returned to work on a full-time basis for two to three months he was able to observe Mr Thompson carrying out his duties.
Mr O'Regan said that Mr Thompson performed his duties 'fine, well enough' but did complain about his wrist every now and then and he could hear a clinking in Mr Thompson's wrist.
He said eventually Mr Thompson chose not to come to work. Mr O'Regan said that there was one time when Mr Thompson did not show up and was really needed so he called him and ultimately received a message from Mr Thompson saying he was not coming in and that he needed to study. Mr Thompson never worked for him again. Mr O'Regan said that if Mr Thompson had wanted to work he could have provided him with work.
Mr O'Regan said that he told J-Corp's supervisor after the incident that he thought the pier was faulty and agreed that after the pier was rebuilt it was rebuilt without a cavity.
Mr O'Regan agreed that it was common practice for roof carpenters to step on top of beams as they marked out and in that process and from time to time would step on piers.
Mr O'Regan agreed that it was not always possible to put scaffolding everywhere and it was common practice for roof carpenters to walk along wall plates, beams or piers (ts 214).
Mr O'Regan agreed he had sent an email stating 'I terminated Alex's employment because he is an unreliable worker'. He agreed that it was annoying and irritating that Mr Thompson was taking time off work for medical attendances and that had put a strain on their friendship but said he knew Mr Thompson had hurt himself and it 'was what it was'.
He said the friendship did not break up until Mr Thompson did not want to come back to work.
He also said that he had never seen a brick pier collapse from somebody being on top of the pier.
I do not accept Mr O'Regan's evidence on a number of points.
On the issue of where Mr Thompson landed when he fell onto the ground, there was a difference between Mr O'Regan's evidence and Mr Thompson's. I prefer Mr Thompson's evidence on that matter. Mr O'Regan was unable to say whether Mr Thompson had moved before he saw him on the ground. Mr Knox's evidence does not assist on this issue.
I find that trestles and planks organised in a scaffold arrangement had been used to place the beam onto the pier. I accept Mr Thompson's, Mr Knox's and Mr O'Regan's evidence in this regard. However, I do not accept Mr O'Regan's evidence that when Mr Thompson fell to the ground the scaffold was in close proximity to him. This is contradicted by the evidence of Mr Thompson and Mr Knox. They each corroborate the others evidence and Mr Knox having worked with both Mr Thompson and Mr O'Regan was impartial. I reject Mr O'Regan's evidence on this point and prefer the evidence of Mr Thompson and Mr Knox that the scaffold had been packed away at the time of the incident.
Mr O'Regan's evidence was that Mr Thompson was able to perform his pre-accident duties well enough in approximately July/August 2016, although he complained about his wrist every now and then and you could hear a clicking in his wrist. Mr O'Regan's evidence was that Mr Thompson essentially stopped coming to work because he wanted to study.
Mr O'Regan's evidence as to the clicking of the wrist supports Mr Thompson's evidence that he was experiencing wrist difficulties.
Mr Thompson's evidence was that when he returned to work on a full-time basis in May 2016 he still had difficulties in that his wrist clinked and cluncked (ts 60) and after a while it was hard (ts 61). Mr Thompson said he stopped working because he did not want to make the position any worse because of their deteriorating relationship in the context where they had been friends and that he agreed to leave before there were any more disagreements with Mr O'Regan and things escalated out of hand. He said they were having disagreements over worker's compensation not paying him on time and Mr O'Regan trying to reimburse him for worker's compensation (ts 64). I accept Mr Thompson's evidence which is to the affect that he was finding work progressively harder.
Dr Fairhurst's opinion as early as February 2016 was that he considered it prudent for Mr Thompson to transfer to a role of a building supervisor and that Mr Thompson would be well advised to reduce the requirements for heavy manual duties.
Dr Keogh noted in September 2016 (exhibit 1.18) that Mr Thompson was looking at a more sedentary occupation and he thought this would be a sensible option.
In October 2016 Dr Overmeire was of the opinion that Mr Thompson could not return to work as a roof carpenter and he needed to be permanently redeployed (exhibits 8.30 to 8.37). He noted he would not be able to work as a driller's offsider.
Dr Slinger reported in March 2017 that Mr Thompson was not fit for pre-accident employment but suitable to work as a project manager or other alternate like work such as retail sales, customer service or similar light duties which is entirely consistent with Dr Overmeire's conclusion.
I find that Mr Thompson had been working with difficulties due to the nature of his injury and that he left because of difficulties arising between Mr O'Regan and himself.
However I reject Mr O'Regan's work capacity assessment and prefer and accept the contemporaneous medical evidence of Dr Fairhurst (February 2016), Dr Keogh (September 2016) and Dr Overmeire (October 2016) a consultant occupational physician, that Mr Thompson was not fit to work as a roof carpenter. That evidence is further corroborated by Dr Slinger's later examination (March 2017).
I draw the inference from the combined weight of Mr Thompson's evidence and the assessments of Dr Fairhurst, Dr Keogh and Dr Overmeire that as at the date he ceased roof carpentry work in July/August 2016 Mr Thompson was not capable of working as a roof carpenter due to the injuries he sustained and reject Mr O'Regan's evidence to the contrary.
I accept that by July/August 2016 there were difficulties in the workplace, however I am satisfied on the balance of probabilities that by the time Mr Thompson stopped working with Mr O'Regan in August 2016 he was not capable of working as a roof carpenter. Dr Overmeire reports that Mr Thompson told him his employment was terminated due to a downturn in the market. Whether Mr Thompson told others that he left because of an economic downturn is of little consequence.

[54]

Mr Tennick started his apprenticeship in 2006 and completed it in 2010 and since that date had worked as a roof carpenter. In 2011 he set up his own business and currently employs three tradesmen.
Mr Tennick receives his work from a number of different builders who build standard not fancy homes.
Mr Tennick said he had been involved in building at least 50 constructions which involved constructing a roof over an isolated brick pier in a porch type area.
He said that most of the piers (approximately 75%) were hollow, and they always had a rod coming up the middle which ultimately was tied to the roof by a welder.
Mr Tennick said that when putting up a roof structure for a porch the first step was to set up a scaffold of A-frame trestles and planks in the appropriate area, then to measure and cut the beams, then to install the beams from the house to the pier and then to join the beams. He said the beams should be nailed to the wall plate at the house end and on the pier end the beams are butted and nailed together. He said you would place the beams whilst on the scaffold and that everything else would be done on the scaffold until the ceiling was complete.
Mr Tennick said that once the beams were installed you would mark out where the ceiling joists were going, measure and cut the joists and install them. He said the joists were nailed to the beams but would sit on top of the brickwork at the house end. They were connected at the house end by the use of over-battens which are pieces of wood placed on top of the joists.
As I understood his evidence the over-battens were placed over all the joists and the over-battens were then nailed to the wall which effectively secured all of the joists together and to the wall (ts 234). He said you could then walk across those ceiling joists.
Mr Tennick said there was not usually any need to stand on a brick pier. He said you could mark up the rafters from the scaffold and if it was a small area you could stand on the brickwork and mark up from the brickwork.
Mr Tennick said he did not recommend standing on a beam because it was only approximately 60 mm wide and there would be a good chance of falling off unless you have got really good balance.
Mr Tennick said he had never seen a roof carpenter mark out rafters by standing on beams without joists and not standing on an A-frame and plank. He said he had seen roof carpenters stand on wall plates but not beams (ts 241). He agreed that if you were marking out the house you could walk along the wall plates, as you do not carry the scaffold all the way around the house.
Mr Tennick said that when working on the hip he would quite often put a foot on the pier. He said he had seen people stand on brick piers, however that occurred only when the ceiling was fitted and the hip was being installed.
Mr Tennick said he had not noticed any instability in piers even if they were hollow because they were 'fairly solid' (ts 239). He said he had never experienced any difficulty with stability or lack of stability from a pier.
He said that you would normally mark out the walls but not the beams before the ceiling joists were installed (ts 243).
Mr Tennick said the pier was built of fastwall bricks which were not as strong as a standard brick but were still strong.
Mr Tennick is not an entirely independent witness as he has performed work for the defendant since approximately 2013 and had also worked for other companies associated with the defendant over the years (ts 244, The Worksafe records, exhibits 8.150 to 8.155 establish the connection between the defendant and companies associated with the defendant).

[55]

Mr Tarry has been a building supervisor since 1998 and a registered builder since 2013.
Mr Tarry has been involved in the building industry one way or another since 1974. He commenced worked as a bricklayer in 1974 and worked in that capacity for 26 years.
Mr Tarry has worked for a number of high volume building companies and is currently a building supervisor with a high end luxury building company.
Although he is not a qualified roof carpenter, he has performed roof carpentry work in the past.
Mr Tarry said that in the course of his involvement in the building industry he had experience with isolated brick piers constructed as part of a porch roofing structure and had seen literally hundreds of such piers.
Mr Tarry said that in earlier times the piers did not contain a rod, but in more recent times they did and the main but not sole purpose of the brick piers with such rods was to tie down the roofing structure. He said that piers were not constructed for people to stand upon but rather to hold up the roof.
In Mr Tarry's experience a pier with a cavity would have that cavity filled, particularly in the high end luxury market.
Mr Tarry said that over the years he had seen roof carpenters carry out their work and marking out the beams. The usual way this was done was by the roof carpenter standing on trestles and planks. He had seen roof carpenters stand on large but not small beams to do the marking out.
He also said that if a roof carpenter was going to walk on the beams they should only do so if the beam was secured at both ends.
He said he had not seen roof carpenters stand on brick piers specifically to mark out beams and he would not expect a roof carpenter to do so.
He said that if a roof carpenter was standing above a brick pier he would be able to see if the cavity of that pier was filled.
He said that if A-frames were present they should have been used.
Having examined exhibits 1.133 and 1.134 Mr Tarry said they showed no evidence that the beams had been attached to the house end before they collapsed. In this regard there is no evidence as to exactly when the photographs were taken nor whether the beams in question are shown in the photographs nor did Mr Tarry detail exactly what he could or could not see that would lead to that conclusion. Mr Tarry said the only place he could see that the bedroom beam could have been be affixed to the house was to attach it temporarily to an area above the corner of the window (ts 250 - 251).
Mr Tarry said that if the beams had been nailed together but not connected to the house ends, the force of a person standing on the beam could push the pier over. Mr Tarry did not say whether that would occur if the pier was filled. I simply note in this regard that Mr Tarry is not a structural engineer and provided no scientific or engineering basis for that conclusion.
Mr Tarry said that as a building supervisor the word 'cast' in structural drawings did not necessarily mean that the cavity should be filled. He considered that the word cast meant to contain within and as the rod was contained within the cavity it was cast in the cavity, even though the cavity was not filled. I reject Mr Tarry's evidence that if the rod was within the void cavity it was therefore cast into the cavity.
I find that the phrase cast into the cavity required the void of the cavity being filled with mortar, cement or broken bricks and mortar thereby casting the rod into the cavity. I accept Mr Van Der Meer's evidence in this regard. He is an experienced consulting structural engineer. Mr Tarry is not a structural engineer and I prefer the evidence of the structural engineer on this point.
Mr Tarry said the minimum size of the pier was specified as 190 mm x 290 mm and therefore the pier would not necessarily contain a cavity and thus the reference to attaching the rod to the perpend joins. He agreed, however, that the construction of this particular pier resulted in it having a very large cavity.
Mr Tarry agreed that as a building supervisor he would inspect the work of a bricklayer after it had been completed and this would involve not only looking at the pier but also making sure that the piers were built in accordance with the plans and whether they were adequate to perform their function. Both parties accept that such an inspection would be to see if the pier performed its function not to see if it was fit for people to stand on.
Mr Tarry said the fastwall brick was a cheaper brick not used on the high end luxury projects that he was currently involved in.
Mr Tarry agreed that he had seen people standing on brick piers on building sites and he had also seen brick piers collapsed on building sites. He said a filled pier was less likely to collapse than an unfilled pier.
Although he initially said in his evidence that he could not think of any lateral force that would be applied to a brick pier during construction, he agreed that wind was a lateral force.
Mr Tarry said that a ceiling joist could not improve the stability of the pier and that ceiling joists alone were not stable surfaces to stand on if they were only fixed on the beam end and not nailed at the house end.
Whilst I accept that Mr Tarry is an experienced registered builder he was not a structural engineer. I prefer the evidence of Mr Van Der Meer, a structural engineer, in relation to the meaning of 'cast into cavity' on engineering drawings and on matters relating to the strength of structures and structures generally.

[56]

Mr Clark is the registered builder for the J-Corp companies which control Impression Homes and in 2014 was the building manager for Impression Homes having started that role in 2013.
Mr Clark said that in 2014 no one worked on wages on any of J-Corp's building sites without his approval. He said there was a team of bricklayers and apprentices that were employed on wages but they were not working on the site in question.
Mr Clark said that all of Impression's supervisors were employed on wages and were employed by and reported directly to him.
The effect of Mr Clark's evidence was that at least in J-Corp's eyes the bricklayer who built the pier was a subcontractor and not an employee of J-Corp.
J-Corp Pty Ltd's trade agreement (exhibits 1.168 to 1.181) describes Mr Ferrier (the bricklayer) as a subcontractor and I find that he was. The agreement permits Mr Ferrier to subcontract any further work out without obtaining J-Corp's approval and recognises that the subcontractor may employ others himself. The agreement obliges the subcontractor to provide material and workmanship and services to a certain standard and supply at his own cost and expense all appropriate plant to complete the subcontractor's works.
Significantly the agreement enables J-Corp to inspect the subcontractor's work and obliges the subcontractor to execute the works in accordance with any directions of the company supervisors.
In my view exhibits 8.182 and 8.183 clearly establish that Mr Ferrier performed bricklaying work on the Bullsbrook dwelling, however we do not know if he was the only bricklayer or there were other teams of bricklayers involved in brickwork at the property.
I accept Mr Clark's evidence, however little turns on his evidence as factually it was not in dispute.
In addition to the witnesses and exhibits produced through those witnesses the parties tendered numerous other exhibits. It is not necessary to deal with each individually, however the tendered documents included the following.
Medical reports of Dr Fick (exhibits 1.1 to 1.4).
These reports establish the uncontradicted fact that Mr Thompson sustained a comminuted left wrist distal radial fracture which required open reduction internally which was performed at Sir Charles Gairdner Hospital on 13 August 2014.
On 19 January 2015 the wrist plate and screws were removed and there was an excision of Mr Thompson's old scar neurolysis and tenosynovectomy. Mr Thompson required a thermoplastic splint for a week to protect his wrist.
Subsequent to the removal of the metal Mr Thompson continued to have trouble with his wrist and an MRI was arranged.
Dr Keogh's reports (exhibits 1.5 to 1.18) show that on 21 September 2015 Mr Thompson underwent a left wrist arthroscopy, debridement of the ulnar corner of lunate, debridement of the pre-styloid recess synovitis, open excision of the ulnar styloid ossicle, ulnar shortening osteotomy and triangular fibrocartilage complex repair.
Dr Keogh diagnosed a left wrist ulnar carpel abutment following the distal radial fracture and an ulnar styloid non-union. Following surgery Mr Thompson was required to wear a splint for a total of four weeks and then spend a further two weeks in a wrist gauntlet and was restricted from any hand activities for three to five days and was only able to return to double hand activities six weeks post-operative lifting nothing heavier than 2 kg and it was thought he would be able to return to unrestricted activities three months post-operative.
The reviews by Dr Keogh at 1 day, 14 days and 6 weeks post operatively all show that Mr Thompson was doing reasonably well. Three months post-operatively Dr Keogh noticed that Mr Thompson was moving quite nicely, had crepitation in the ulnar side of the wrist and circumduction movement of the wrist which could become painful after prolonged movements. Dr Keogh noted at the six month mark that again Mr Thompson was doing reasonably well, he had been on light duties for a few months and was ready to return to full-time work but he suffered from residual volar instability of the distal radial ulnar joint which could be provoked with certain movements and a widget splint was organised.
In June 2016 although Dr Keogh observed that Mr Thompson was doing 'nicely', he was still having ongoing issues with distal radioulnar joint instability.
Dr Keogh noted that in August 2016 the metal work was removed from Mr Thompson's wrist and he was restricted from any hand activities for three to five days, although he could return to double handed activities at 10 days post-operative lifting nothing heavier than 2 kg and could return to full unrestricted activities two weeks post-operative depending upon his recovery. It appears however that Mr Thompson's general practitioner declared him unfit for work (exhibits 8.030 to 8.037).
Dr Keogh noted in September 2016 that Mr Thompson was looking at a more sedentary occupation which Dr Keogh thought would be a sensible option. Although Mr Thompson was going reasonably well Dr Keogh thought, he still had mild residual distal radioulnar joint instability in a volar direction.
The radiological records (exhibits 1.19 to 1.27) confirmed a tear of the triangular fibrocartilage complex (TFCC) disc and noted in July 2016 that there was an intact repair at the ulnar attachment of the TFCC following excision of the ulnar styloid process and a mild chondral thinning at the proximal ulnar aspect of the lunate consistent with previous ulnolunate impaction and that the subchondral narrow changes of the lunate had resolved.
Various worker's compensation certificates being exhibits 1.62 through to 1.91 were produced however it is not necessary to summarise those certificates.
Various photographs have also been exhibited although they are of limited use.
The triage nursing assessments from the Swan Kalamunda Health Service (exhibit 8.5) notes that upon admission Mr Thompson denied hitting his head and reported a prior medical history of depression.
The Sir Charles Gairdner Hospital medical notes (exhibits 8.6 to 8.13) are unremarkable and reported that Mr Thompson had not lost consciousness.
The occupational therapist's reports (exhibits 8.13 to 8.17) simply confirm ongoing therapy required and undertaken by Mr Thompson.
Dr Fairhurst's report of February 2016 (exhibits 8.18 to 8.27) confirms that Mr Thompson had expressed an interest in project management and was undertaking an online diploma. Dr Fairhurst considered that it was prudent for Mr Thompson to transfer to a role in that field and that Mr Thompson would be well advised to reduce the requirements for heavy manual duties. It was noted that Mr Thompson's left wrist function was compromised and likely to worsen with the passage of time and the doctor had reservations about Mr Thompson returning to his high risk occupation as a roof carpenter. Dr Fairhurst's report notes that Mr Thompson had reported a brief loss of consciousness.
Dr Overmeire's, a consultant occupational physician, (exhibits 8.30 to 8.37) report of 12 October 2016 noted that Mr Thompson had sustained a mild to moderate permanent impairment of the left wrist and it was considered unlikely that Mr Thompson would make a full functional or symptomatic recovery and that mild distal radioulnar ulnar joint instability was likely to persist indefinitely.
Dr Overmeire said Mr Thompson was fit for full-time work with the following restrictions:

[61]

The doctor said that Mr Thompson's right dominant arm had unrestricted use, however Dr Overmeire was of the opinion that Mr Thompson could not return to work as a roof carpenter and he needed to be redeployed for example as a forklift driver. He said Mr Thompson could not work as a driller's offsider.
Dr Overmeire said Mr Thompson had a permanent impairment and had a total upper extremity impairment of 10% which translated to 6% whole person impairment or a 10.53% impairment of the arm below the elbow.
A large number of reports from Ms Stewart, an occupational therapist, were tendered (exhibits 8.53 to 8.93) as were reports from Ms Martin, an exercise physiotherapist (exhibits 8.94 to 8.104). These reports confirm occupational therapy programmes and exercise programmes undergone by Mr Thompson. A return to work programme occurred in March 2016. Mr Thompson's vocational rehabilitation was closed on the basis that he was returning to the same employer, same duty (exhibits 8.089 to 090).
It is reported that when Mr Thompson returned to pre-injury duties and hours he managed well but was required to adjust the way he completed his work and tasks to accommodate his wrist injury (exhibits 8.100 to 101). It was reported he was able to lift 10 kg above his head and 20 kg to the waist.
Subsequent to the August 2016 operation Mr Thompson underwent a course with an exercise physiologist who recommended a gym based rehabilitation programme to restore his upper limb muscular strength (exhibits 8.102 to 8.103). There is no evidence to indicate whether Mr Thompson completed this programme.
Professor Mulvey's report of 26 September 2018 establishes that the average weekly earnings for a full-time male building and construction supervisor in May 2018 was estimated to be $2,253 weekly or $117,467 per annum. A construction project manager's weekly earnings was $2,666 ($139,016 per annum), a customer service officer was earning $1,311 per week ($68,346 per annum), a sales assistant was earning $1,086 (or $56,621 per annum), a forklift operator was earning $1,165 ($60,740 per annum) and a light store person $1,194 ($62,272 per annum). The report is contained at exhibits 8.146 to 8.149.
The defendant's first notification of incident/injury is exhibits 8.150 to 8.151 and various Worksafe forms are exhibits 8.152 to 8.155.

[69]

The question at the breach stage is what would a reasonable person in the position of the defendant have done: Apostolic Church Australia Limited v Dixon [2018] WASCA 146 [258].
A failure to eliminate a reasonably foreseeable risk does not establish negligence. You must look to see what a reasonable person would do by way of a response to a foreseeable risk and it is fundamental that the question of whether the defendant breached his duty to exercise reasonable care is approached prospectively, not retrospectively with the benefit of hindsight and without regard to the fact that the relevant risk materialised: Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422 [105], [124], [126] (Hayne J); Roads and Traffic Authority of New South Wales v Dederer [2007] HCA 42; (2007) 238 ALR 761; Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem [2009] HCA 48 [31] - [40] and **Dixon [**157].
Mr Hancy correctly points out that the fact that safety could be improved by adopting a particular precaution is not proof of negligence: Nelson v John Lysaght (Australia) Limited [1975] HCA 9; (1975) 132 CLR 201, 214.
The inquiry is to be made having regard to the considerations in s 5B(2) of the of the Civil Liability Act 2002 (WA) (CLA) amongst other things: Dixon [157].
Section 5B(1) and s 5B(2) CLA provides a person is not negligent in failing to take precautions against the risk of harm unless the risk was one of which the person knew or ought to have known, the risk was not insignificant and, in the circumstances, a reasonable person in the person's position would have taken those precautions.
In determining whether a reasonable person would have taken precautions against the risk of harm, the court is to consider, amongst other relevant things, the probability that the harm would occur if care were not taken, the likely seriousness of the harm and the burden of taking precautions to avoid the risk of harm and the social utility that creates the risk of harm.
Section 5C of the CLA provides that a determination that negligence caused particular harm comprises firstly, that the negligence was a necessary condition of the occurrence of the harm (factual causation). Secondly, the court must ask is it appropriate for the scope of the negligent person's liability to extend to the harm so caused (scope of liability). In determining the scope of liability, the court must consider amongst other relevant things, whether or why responsibility of the harm should be imposed on the negligent party.
The concept of foreseeability is not an assessment of the probability or improbability of the occurrence and it does not follow that a risk which is unlikely to occur is not foreseeable. A risk that is remote in the sense of being extremely unlikely to occur may constitute a foreseeable risk. A risk which is not farfetched or fanciful is real and therefore foreseeable: Wyong.
The requirement is of reasonableness not some more stringent requirement of prevention.
The defendant's admitted duty was to use reasonable care when coordinating the activities of trades at the premises to avoid unnecessary risks of injury or minimise the risk of injury to those engaged in the activity it organised.
The risk of harm alleged by Mr Thompson is the risk that a roof carpenter installing the roof would be injured as a result of the pier collapsing and suffer a not insignificant injury.
Mr Thompson says that the precaution the defendant should have taken was to check the brickwork and ensure the cavity was filled.

[71]

The answer to this question involves examining interrelated issues including but not limited to what the defendant knew or ought to have known about the strength of the pier, and whether the defendant knew or ought to have known that persons such as roof carpenters may work on or from the pier.
Mr Van Der Meer said that hollow core isolated piers on building sites are relatively uncommon. He said an unfilled pier made from fast wall brick is very weak and not capable of withstanding relatively low horizontal forces. Mr Van Der Meer said the unfilled pier was too weak to support loads such as those applied by the feet of roof carpenters.
Mr O'Regan said that he had never seen a brick pier collapse from somebody being on top of a pier. Mr Tennick said that he had never seen a hollow pier collapse because somebody had been standing on it to put up a hip.
Mr Tennick said he never experienced any difficulty with stability or lack of stability from piers even if they were hollow. He agreed that fast wall bricks were not as strong as standard bricks but said they were still strong.
Mr Tarry said that in his experience a pier with a cavity would have that cavity filled. He had also seen brick piers collapsed on building sites and agreed that a filled pier was less likely to collapse than an unfilled pier.
I accept Mr Van Der Meer's evidence that the unfilled pier was too weak to support loads such as those applied by the feet of roof carpenters. Mr Van Der Meer was the only structural engineer to give evidence. Mr Van Der Meer was the witness most qualified to express an opinion on the engineering strengths of the unfilled pier. I accept his evidence in this regard in preference to the evidence of the other witnesses who were not structural engineers but registered builders, building supervisors, building managers or roof carpenters. Mr Van Der Meer's' evidence was not diminished by cross examination.
The only engineering evidence given in this case was that an unfilled pier was too weak to support loads such as those applied by the feet of roof carpenters. I find as a fact that the unfilled pier was too weak to support loads such as those applied by the feet of roof carpenters. As the builder of the house the defendant ought to have known this.
A reasonable person in the defendant's position should have foreseen that roof carpenters may in the process of installing the roof to an isolated pier (by which expression I include marking out the beams and wall plates) at some stage walk or stand on an isolated pier and thereby apply horizontal forces sufficient to topple the pier. It is not a farfetched or fanciful prospect but real and therefore foreseeable.
Mr Thompson's evidence was that marking out the beams from the top that is by standing on wall plates, beams or the pillar, is a practice that was his normal practice and he said he observed other roof carpenters perform their task in the same manner.
Mr Van Der Meer said that he had often seen roof carpenters standing on brick piers.
Mr Knox said that in his 30 years' experience it was common practice for carpenters to mark out the roof from the top and that when you are marking out the beams that were already in place, 80% of the time it would be done from the top without scaffold.
Mr O'Regan said it was common practice in these circumstances to mark out the beams from a scaffold, however he agreed that it was not always possible to put scaffold everywhere and that it was common practice for roof carpenters to walk along wall plates, beams or piers, and that it was common practice in some circumstances for roof carpenters to step on top of beams as they marked out. He agreed that from time-to-time they would step on piers.
Mr Tennick said there was not usually any need for a carpenter to stand on a brick pier but stated that if it was a small area, roof carpenters could stand on the brickwork and mark up from the brickwork. He said that while working on the hip, roof carpenters would 'quite often put a foot on the pier'. He clarified his answer that when he saw people standing on brick piers it was only when the ceiling was fitted and the hip was being installed.
Mr Tarry said the usual way for roof carpenters to mark out the beams was for them standing on trestles and planks, but he had seen roof carpenters stand on large, but not small, beams to do the marking out and that if a roof carpenter was going to walk on the beam they should only do so if the beam was secured at both ends.
I note that Mr Van Der Meer described the beams in this case as 'rather large' (exhibit 1.125). Mr Thompson said the beams were secured at both ends. Mr Knox who could not recall installing the beams, but accepted that he probably did, described his usual practice as fixing the beams at both ends.
Mr Tarry said he would not expect a roof carpenter to stand on brick piers specifically to mark out the beams. He agreed that he had seen people standing on brick piers on building sites.
I accept that the effect of Mr O'Regan's, Mr Tennick's and Mr Tarry's evidence is that it was a common practice when erecting patio ceilings above an isolated brick pier to set up a scaffold of A-frame trestles and planks, stand on the scaffold to measure the beams, cut the timber beams, install them, nail the beams together over the top of the pier, nail them to the house, erect the joist and install the joist by use of an over-baton and to do so from the scaffold (except for the cutting of the beams).
I also accept that the effect of their evidence was that in their experience standing on the pier was generally confined to nailing the hip to the beam, which occurred after the rafters and joist were in place and that the pier would not be stood on until the full ceiling was in place.
Mr O'Regan, Mr Tennick and Mr Tarry say that the usual or common procedure was to mark out from a scaffold or to first place and secure beams from the house to the pier and then place and secure joists from the house to the beams. The defendant says that if Mr Thompson had adopted either of those methods he would not have stepped on and forced his weight against the edge of the top of the pier.
However usual or common a procedure is does not mean a different procedure is not reasonably foreseeable. As the evidence shows, different roof carpenters adopt different working methods.
As shown above all the witnesses describe seeing roof carpenters standing on piers in some circumstances and not all described that as being confined to installing the hip.
Mr Thompson and Mr Knox effectively say it was routine procedure for roof carpenters to stand on isolated piers when marking out in the circumstances that occurred in this case. Mr Van Der Meer says it was common practice for roof carpenters to traverse beams partly supported by isolated brick piers and had often witnessed roof carpenters standing on brick piers.
Mr Tennick said if it was a small area you could stand on the brickwork and mark up from the brickwork. As a matter of common sense one roof carpenter's definition of what constitutes a small area may be different to others.
Mr O'Regan's, Mr Tennick's and Mr Tarry's evidence as to the common practice they described does not lead me to conclude that it is not reasonably foreseeable that in the process of performing the task of marking out the beams or wall plates to an isolated pier a roof carpenter may stand on and therefore step on and off the beams or that isolated pier before the hip is installed.
Mr O'Regan's evidence was that Mr Thompson 'could have done it off the scaffold but for whatever reason he finds it easier to mark on top of the beams'. I do not place too much emphasis on any one answer, however that answer tends to support Mr Thompson's evidence that this is the way he commonly marks out the beams or walls.
I agree with Mr Hancy's submission that the pier was not built as a work platform or to have lateral forces applied to a top edge by a workman using it as a work platform, however the defendant was building a house with an isolated pier to be covered by a roof.
The very nature of a house under construction means that different considerations will apply at different stages of construction.
The defendant was the builder and occupier. They knew that the porch roof beams traverse from the brickwork at the house to the pier and the beams need to be marked up prior to the rafters being fitted. The defendant called the roof carpenters to the site. I am persuaded by the prepondence of evidence that it is reasonably foreseeable that in the process of performing the task of marking out the beams or wall plates to an isolated pier a roof carpenter may stand on and therefore step on and off the beams and pier before the hip is installed (hereinafter referred to as 'marking up') and thereby apply horizontal forces sufficient to topple the pier.
Mr Hancy submits that the pier would not topple unless sufficiently strong horizontal force was applied to it and that more must be foreseen than the possibility that a roof carpenter might stand on the pier.
Mr Hancy says the evidence established that it was not the standing on the pier that created a risk of collapse but rather the application of horizontal forces. Whether that force was sufficient to topple the pier depended not only on the mass and acceleration but the angle of application of the force and where on the top of the pier the force was applied.
Mr Hancy argues that the danger of the pier collapsing could only arise if the force was applied to the top of the pier in a very particular way and therefore the pier was not a danger that would be apparent to anyone other than an engineer who carried out the specialist calculation as Mr Van Der Meer did after the event.
Mr Hancy said that any danger was created by Mr Thompson's conduct in directing his weight against the top of the pier. He says no risk of collapse of any or sufficient likelihood has been identified that would require as a reasonable response the filling of the cavity. Mr Hancy also submitted that there was no evidence that the filling of the cavity was an engineering specification that was intended to protect against the risk of a collapse from the person standing on top of the pier (the defendant's closing trial submissions).
The evidence of Mr Van Der Meer, which I accept, was that force was required to topple the pier. Force is mass multiplied by acceleration. Mr Van Der Meer said the force applied to the top of the pier was effected not only by mass and acceleration but also the angle that the force was applied and the point on the pier of which the force applied. All these factors were relevant in producing the force that ultimately toppled the pier.
Mr Van Der Meer said a change in any one of those components, that is, a different angle or a different mass or a different acceleration or a different contact point on the pier may have meant that the pier would not have toppled.
Mr Van Der Meer said the pier did not topple because Mr Thompson was standing on it but because in the process of taking his step from the pier to the garage beam, that is as he left or stepped off the pier onto the beam, Mr Thompson's body mass plus the acceleration of his step applied forces to the top of the pier and those forces had a horizontal component sufficient to topple the pier.
Mr Van Der Meer's evidence is that the stepping on and off the pier involve the application of horizontal forces to the top of the pier and the unfilled pier was laterally too weak to support the application of those forces.
Mr Van Der Meer said that if the pier cavity had been filled in the manner he suggested, the horizontal force component applied by Mr Thompson as he attempted to move back to the main wall of the house would not have been sufficient to cause the pier to fail.
The nature of Mr Thompson's movement on and off the pier must be considered. He denied and I accept his evidence in this regard that he 'pushed off' the pier. Mr Thompson said he took a step (ts 53).
The nature of the movement described by Mr Thompson is the very nature of the movement that I find was reasonably foreseeable, that is a step on or off an isolated pier in the process of marking up.
Mr Van Der Meer's evidence is that the stepping on and off the pier involve the application of horizontal forces to the top of the pier and the unfilled pier was laterally too weak to support the application of loads such as those applied by the feet of roof carpenters. I am satisfied that Mr Thompson's manner of stepping off the pier was a 'normal' step such that the step, the angle of the step, the positioning of the feet and the point of contact on the top of the pier was nothing other than what would normally be applied by a roof carpenter's feet in the process of stepping on or off a pier.
I find it is reasonably foreseeable that in the process of performing the task of marking up the beams or wall plates to an isolated pier before the hip is installed, a roof carpenter may stand on and therefore step on and off the beams and/or pier and thereby apply horizontal forces sufficient to topple the pier.
Further, the risk of a roof carpenter falling to the ground below if the pier collapsed whilst he was stepping on or off the pier in the process of marking up the beams or wall plates is clearly foreseeable as is the risk of that fall resulting in injury.

[78]

All that was required was to ensure that the pier void was filled with mortar, cement or bricks and mortar. I have found that this was specified by the engineering drawing. Bricklayers had been on the site. Mr Van Der Meer's evidence which I accept was that bricklayers could fill the cavity as they built the pier. I accept Mr Van Der Meer's evidence and find as a fact that the cost of filling the pier was approximately $30. I find that filling the cavity was practical, reasonable and inexpensive.
The defendant's building supervisors could have checked that the pier was filled. This would have prevented the harm suffered by Mr Thompson.
The cost of checking to ensure the pier was filled was not the subject of any evidence. Mr Clark's evidence was that in 2014 the defendant employed building supervisors who report directly to him (ts 291) and their job included engaging subcontractors (ts 292). The subcontract agreement with the bricklayer permits the supervisor to give directions to the bricklayer and inspect the work at any time. Checking to ensure the pier was filled at most would require an onsite inspection. In circumstances where the defendant employs supervisors all that was required was to ensure a site visit prior to the roof carpenters commencing work and to visually inspect the pier. Professor Mulvey's evidence (exhibits 8.146 to 8.149) shows the average weekly earnings of a building supervisor at the time was $2,253 per week (approximately $56 per hour). Even allowing for travel time and inspection time the cost of an inspection, (allowing two hours travelling time and a generous one hour for the inspection) even if solely for the purpose of checking one isolated pier is relatively modest. Given the prevalence of mobile phones it may well have been possible to have the bricklayer send a photo of the filled cavity pier, however I assess the burden bearing in mind the cost of an onsite inspection.
The burden of ensuring the pier was filled was not high considering both the cost of filling the pier and the cost of checking to ensure it was filled.
The evidence establishes that the pier was rebuilt some days later (without a void cavity).This is not evidence of, or an admission of, any negligence.

[80]

The defendant had a duty to use reasonable care in organising the roof carpenter's activities to avoid unnecessary risk of injury to those engaged in those activities.
To discharge this duty I find that it was necessary for the defendant to ensure that the pier cavity was filled with mortar or cement or bricks and mortar before the roof carpenters commenced their work.
The breach of that duty was the defendant's failure to ensure that the pier cavity was filed with mortar or cement or bricks and mortar.
The defendant was the builder of the house under construction and the occupier of the premises. They knew the engineering plan required the rod to be cast into the cavity. I have found that required the pier to be filled with mortar, cement or bricks and mortar.
The defendant engaged and organised the different trades being the bricklaying and roof carpentry team. Clearly the roof carpenter could not perform their work until the bricklayers had built the walls plate height. Neither trade controlled the other's activities. The two trades were not required to interact, however the work of the bricklayer interacted with the work of the roof carpenters.
The defendant advised the roofing carpenters that the premises were ready for their attendance. They invited the roof carpenters to the premises to install the roof timbers over the pier. They knew the roof carpenters would be on the premises doing the work they requested. The defendant knew that beams would need to be placed from the house to the isolated pier.
The nature of the activity being performed by the roof carpenters included the need to mark up the beams and wall plates. The existence of the isolated pier meant that two beams would come from the brickwork of the house to that pier and rest on it.
I find it was reasonably foreseeable that in the process of performing the task of marking up the beams and wall plates to an isolated pier before the hip was installed a roof carpenter may stand and therefore step on and off the beams or isolated pier and thereby apply horizontal forces sufficient to topple an unfilled pier. The risk of roof carpenters thereby applying horizontal forces sufficient to topple the unfilled pier was not farfetched or fanciful but real and therefore foreseeable as was the risk of the unfilled pier collapsing, the carpenter falling 2.4 m and sustaining not insignificant injuries.
I find that the unfilled pier was too weak to support the load such as those applied to the top of the pier by the feet of roof carpenters. As the builder of the house, the defendant ought to have known that.
I find that there was a high likelihood that if a roof carpenter stepped on or off the pier it may collapse and inevitably the carpenter would fall to the ground, some 2.4 m below, with a high likelihood of sustaining not insignificant harm.
I find that there was an easy, inexpensive and practical means to address this hazard and the burden of eliminating the hazard or danger was minimal.
The defendant had a duty to ensure that the brickwork was not a risk to other people using the site.
The defendant ought to have checked that the cavity void had been filled and the brickwork built according to specifications before the roof carpenters commenced their work.
It was reasonable for the defendant not to direct the bricklayer as to the manner in which he would perform his work, however a reasonable person in the defendant's position would have made the site safe for the roof carpentry team they were engaging by ensuring that the pier was filled. This does not involve hindsight reasoning.
The defendant reserved for themselves the contractual right to inspect the bricklayer's work at any time (exhibits 8.168 to 8.181, cl 11). An inspection to see if the brickwork complied with the engineering drawings before the roof carpenters were called upon to attend the site would have revealed that the cavity was unfilled.
Notwithstanding that the duty owed by the defendant to Mr Thompson was less stringent than that owed by an employer to an employee as a matter of fact, I find that a reasonable person in the defendant's position ought to have anticipated that a roof carpenter marking up beams or wall plates may not have observed that the cavity was unfilled due to inattention or negligence or the position of the beams over the pier or the mistaken belief that the pier was constructed in accordance with the engineering drawings.
The risk of harm was a foreseeable risk that required a response.
A reasonable person in their position would have taken those precautions, the cost of having them filled was minimal, as was the cost of the inspection to see if they were filled. This would guard against the risk that the pier would collapse.
This does not mean that the defendant was required to have people present on the site when the bricklayers performed their work or directed that their work was undertaken by the bricklayer. I find that the pier was built by an independent contractor being the bricklayer. The defendant was required to ensure that the pier cavity was filled with mortar, cement or bricks and mortar. This does not involve any hindsight reasoning. Nor does it involve holding them liable for the negligence of their independent contractor, the bricklayer. The defendant is liable because of their own breach of duty.
The defendant says it is irrelevant that the chance of the pier collapsing was less if the cavity was filled as the design requirement for the cavity to be filled (which they do not admit) was related to its function of supporting the roof and not to providing a more stable work platform. This submission misstates the evidence. Mr Van Der Meer said a filled pier would not have collapsed. To look solely at the purpose of the pier or its design puts focus on the wrong question. Consideration must be given to other issues including but not limited to what work the roof carpenters were to perform and the manner they were to perform that work.

[82]

The two questions identified in s 5C(1) of the CLA must be kept distinct and in most cases the determination of factual causation between a breach of duty and the harm is a question of fact to be determined by the application of common sense to the facts of the particular case and nothing more or less than the application of a 'but for' test of causation, that is, but for the negligent act or omission, would the harm have occurred: Strong v Woolworths Limited [2012] HCA 5; Dixon [66], [67]; March v E. & M.H. Stramare Pty Limited [1991] HCA 12; (1991) 171 CLR 506.
The negligent act or omission does not need to be the sole cause of the harm but it must 'materially contribute' to the damage: Bennett v Minister of Community Welfare [1992] HCA 27; (1992) 176 CLR 408, 411 - 413. A material contribution is one that was not negligible: Western Australia v Watson [1990] WAR 248, 286; Lyle v Soc [2009] WASCA 3.
The failure to ensure the pier cavity was filled was a necessary condition of the occurrence of the harm. A necessary condition is a condition that must be present for the occurrence of the harm.
The defendant breached its duty of care by its failure to use reasonable care in organising the roof carpenters activities to avoid unnecessary risk of injury to those engaged in the activity they organised in that it failed to exercise a supervisory power over the works by ensuring that the pier was filled.
This failure was the direct cause of Mr Thompson's harm.
I find as a fact that if the pier cavity had been filled in the manner referred to by Mr Van Der Meer the horizontal forces applied to the top of the pier by Mr Thompson when taking the step he took would not have been sufficient to cause the pier to collapse and this would have prevented the harm suffered by Mr Thompson. I accept Mr Van Der Meer's evidence in this regard.
In my view Mr Thompson has succeeded in establishing his claim at common law and under the OLA that the defendant failed to inspect to see that the brickwork on the premises was constructed safely as pleaded in par 9.3 of the amended statement of claim, in that the defendant failed to ensure that the pier's cavity was filled in the manner referred to in this judgment.
In my view pars 9.2 and 9.1 of the amended statement of claim and the issues relating to the fast wall brick being used add nothing. The issue is the cavity pier being unfilled not the type of brick used.

[86]

As I understand their position the defendant says Mr Thompson should have performed the task of marking up by the use of a scaffold. I accept that if the scaffold had of been set up, then the marking of the beams could have been performed without Mr Thompson stepping on and off the pier and that would have avoided him suffering harm.
There is no doubt that a scaffold, being an A-frame and trestles, had been used to install the beam earlier that morning. I have found that at the time of the incident the scaffold had been packed away on a vehicle. I rejected Mr O'Regan's evidence that the scaffold was still set up at the time of the incident.
There is an onus on the defendant to prove contributory negligence. There is no satisfactory evidence as to when the scaffold was taken down and packed away or who packed it away or more to the point how easy it was to unpack, whether that is one man or two person's task or how it would have been set up or where Mr Thompson was when it was packed away.
The defendant seems to accept by its closing submissions that Mr Thompson was an employee of Mr O'Regan's company (defendant's closing submissions par 6). Its clear Mr Thompson did not pack the scaffold away. In circumstances where Mr Thompson normally marks up from the top and the scaffold has been removed by his employer or other subcontractors and in the absence of evidence as to what it took to unpack and set the scaffold up, I am not persuaded that Mr Thompson was contributorily negligent in that he ought reasonably to have foreseen that, if he did not work from the scaffold he would expose himself to risk of injury: The Commissioner of Railways v Ruprecht [1979] HCA 37; (1979) 142 CLR 563.
In addition the defendant also says Mr Thompson could have employed a system of work that resulted in securing the beams from the house to the pier and then placing and securing the joists from the house to the beams and in so doing, as I understand their argument, he would have been able to 'mark up' by standing on those beams or joists without stepping on the pier.
Mr Van Der Meer's evidence was that even if ceiling joists had been placed from the house to the beams, the lateral stability of the beams would have been improved but the stability of the brick pier would not have been improved. Mr Tarry also provides support for this view (ts 237), although as previously indicated I rely on Mr Van Der Meer's evidence. I find that even if ceiling joists were installed in the manner suggested by the defendant, firstly that would not have meant that a roof carpenter would not have stepped on the pier while he was performing the marking up and secondly, the installation of the joists would not have improved the stability of the pier.
Thirdly, it is suggested that Mr Thompson did not have a fall protection device or a handhold or guard against the risk of falling if he stood or moved on a beam or the top of the pier.
There is absolutely no evidence that roof carpenters would normally use a fall restrain device, hand grab or guard whilst marking up or as to how a fall protection device, or a handhold or guard would have either prevented the pier from collapsing or prevented the injury occasioned to Mr Thompson when the pier collapsed.
It is also suggested that Mr Thompson should have noticed that the pier was unfilled. I do not consider there to be any merit in this point as even if Mr Thompson saw that the pier was unfilled, he could not be expected to know the structural stability of a filled or unfilled pier. In any event the defendant should have given consideration to the possibility of thoughtlessness, inadvertence or carelessness on the part of people who the defendant knew or ought to have known would be on the roof: McLean v Tedman [1984] HCA 60; (1984) 155 CLR 306, 312; Czatyrko v Edith Cowan University [2005] HCA 14; (2005) 79 ALJR 839 [12].
I find no evidence to support the claim of any contributory negligence on Mr Thompson's behalf.
Section 5N CLA refers to an obvious risk to a person who suffers harm as a risk that in the circumstances would have been obvious to a reasonable person in the position of that person. Even at its highest for the defendant, accepting that Mr Thompson ought to have been aware that the pier was unfilled, I find this section has no application as the risk of an unfilled pier collapsing would not be obvious to a reasonable roof carpenter in Mr Thompson's position. A reasonable person in Mr Thompson's position could not be expected to know the structural stability of a pier.

[97]

Section 5, s 6 and s 7 of the OLA replace the common law in determining the care that an occupier of premises is required to show towards a person entering on the premises in respect of dangers to that person which are due to the state of the premises or to anything done or omitted to be done to the premises and for which the occupier of the premises is by law responsible: Department of Housing and Works v Smith (No 2) [2010] WASCA 25; [2010] WASCA 25; (2010) 41 WAR 217 [60].
In cases of alleged breach of duty by an occupier a number of matters must be considered: Department of Housing and Works v Smith (No 2) [87] (Buss JA):
Firstly, the determination of what, if anything, a reasonable person in the occupier's or lessor's position would have done involves an assessment of what would have been reasonable and practicable for the occupier or lessor to have done. Secondly, this inquiry is not to be undertaken in hindsight. It is necessary to look forward to identify what a reasonable person would have done, not backward to identify what would have avoided the particular injury. Thirdly, contemporary standards within the community are relevant in determining what is unreasonable in the circumstances of a particular case. Fourthly, reasonableness may require no response to a foreseeable risk that is not insignificant. Fifthly, the occurrence of a foreseeable risk, that was not insignificant, does not establish unreasonableness.
An occupier's duty to exercise reasonable care varies with the circumstances including the degree of knowledge or skill which may reasonably be expected of the invitee and the purpose for which the invitee enters upon the premises: Papatonakis v Australian Telecommunications Commission [1985] HCA 3; (1985) 156 CLR 7, 20 (Mason J).
Deciding what is reasonable involves an 'interplay of considerations' including the reasonableness of an expectation that any invitee will exercise reasonable care for his own safety and the possibility that the invitee will sometimes be inattentive or even negligent; the obviousness of the relevant risk of harm and the remoteness or otherwise of the likelihood that others will fail to observe and avoid it: Thompson v Woolworths (Qld) Pty Ltd [2005] HCA 19; (2005) 221 CLR 234 [37].
The obviousness of the risk of injury is relevant to the reasonableness of a reasonable person's response to the risk involved: Thompson v Woolworths (Qld) Pty Ltd [36]. However, that does not relieve an occupier's duty to take reasonable care to see that that person will not suffer injury or damage by reason of any such danger.
The defendant is not liable for harm caused by their fault in failing to take precautions against the risk of harm unless a reasonable person in their position would have taken those precautions.
Section 5(1) of the OLA refers to,

[99]

It is necessary to identify whether the pier was a danger due to the state of the premises or in respect of the premises and whether there was a reasonable response by the occupier to the danger.
'Danger' is not defined in the OLA. However, in McLachlan v Purchas (Unreported, WADC, 12 February 1998, Library 980038) O'Sullivan DCJ effectively equated a danger due to the state of the premises with a condition or activity that presents a 'foreseeable risk' of injury, observing that it was not possible to conceive of a foreseeable risk which did not constitute a danger. The subsequent appeal was dismissed McLachlan v Purchas (Unreported, WASCA, 21 December 1998, Library No 980749). In Bryant v Fawdon Pty Ltd (1993) Aust Tort Rep 81-204; (Unreported, WASCA, Library No 930037, 22 January 1993) Murray J referred to the relevant danger as that the cistern (the object in question in that case) might fall upon a reasonably foreseeable plaintiff using the toilet in the circumstances such as arose in that case. This seems to me to be applying the same test.
What is safe for one class of people may, of course, be unsafe for others: Neindorf v Junkovic [2005] HCA 75; (2005) 80 ALJR 341 [8] (Gleeson CJ).
Mr Hancy says that the pier was not a danger as it was simply a pier, a static object with a cavity without mortar or concrete. He says there was no evidence that it was not safe for its intended purpose which was to hold up the porch roof and it would not topple unless sufficiently strong horizontal force was applied to it.
In this case whether there was a danger in respect of the state of the premises involves looking at the object in question and the state of the premises. The object's intended purpose is not the only consideration. The issue is whether it was reasonably foreseeable that the pier would be used in the manner in which Mr Thompson used it and whether it was reasonably foreseeable that in those circumstances the pier would collapse and cause injury. Obviously these questions overlap with other elements relevant to a decision on liability under the OLA and under the CLA: Dovuro Pty Limited v Wilkins [2003] HCA 51; (2003) 215 CLR 317. In relation to all three questions, for reasons previously expressed when examining the issue under the CLA, I have answered in the affirmative.
I am satisfied that a pier with an unfilled cavity was a danger due to the state of the premises. The danger was that the pier would collapse and cause injury to those working from it whilst roofing the premises. It was a danger from which roof carpenters required protection.
Pursuant to s 5(1) of the OLA the defendant was required to exercise 'such care as in all the circumstances of the case is reasonable to see that persons would not suffer injury or damage by reason of that danger.'
Specifically the following issues need to be determined in deciding whether that duty was breached.

[115]

Mr Thompson was 24 years old at the time of the incident.
His father was a roof carpenter. Mr Thompson served his apprenticeship as a roof carpenter and worked as a roof carpenter for approximately 8 years prior to the incident. He had also worked as a driller's offsider.
As a result of the incident he suffered a comminuted distal radial fracture of the left wrist with an associated tear of the triangular fibrocartilage complex disc.
He was hospitalised and underwent surgical intervention in August 2014, January 2015, September 2015 and August 2016. The injury has affected not only his capacity to work but also his day-to-day activities. Mr Thompson described ongoing symptoms of tiredness of the wrist, cramps and soreness to the wrist area.
In addition he has the scarring to which I have referred previously.
Dr Slinger, whose evidence I accept, said Mr Thompson's lifting ability was now restricted to 20 kg, the grip and strength of his left hand was reduced and his left wrist was weaker and tighter. The injury had caused interference with Mr Thompson's ability to sleep and he suffers ongoing pain in cold weather.
Dr Slinger described the injury as a 20% loss of function of the upper extremity. Dr Overmeire described the injury as mild to moderate and resulting in a 10% loss of function of the upper extremity.
I accept that there is a divergence in the medical opinions. I prefer the evidence of Dr Slinger who gave evidence in court and was subject to cross-examination to the report of Dr Overmeire.
I accept Dr Slinger's evidence that Mr Thompson is able to manage his domestic activities, but has difficulties insofar as typing or using computer consoles such as Xbox. Further, the injury has restricted his gym activities and finished his football career. Mr Thompson experiences itching on the forearm and a crackling sound of the wrist.
Mr Thompson has to avoid activities that will provoke his wrist and on occasions is required to wear a wrist splint. Day-to-day activities such as other people pulling on his wrist to gain his attention and the future prospect of children interacting in such a way as to cause wrist discomfort must be taken into account.
Mr Thompson underwent considerable occupational therapy involving extensive exercise programmes and the like and is required to take medication. He also has a 50% prospect of developing degenerative changes and a 10% to 20% prospect of requiring further surgery in 20 to 30 years' time.
Bearing in mind that Mr Thompson was involved in an occupation where his wrist was used on a daily basis and was a fit and active young man involved in gym and sporting activities $65,000 is the appropriate award for general damages, however pursuant to s 9(2) and s 9(3) CLA, as the amount I have assessed, $65,000, is more than Amount C ($63,500) and less than the sum of Amount A and Amount C ($85,000), damages are not to be awarded in an amount that is more than the excess of the amount assessed over the amount calculated as follows $21,500 - ($65,000 - $63,000) which results in an award of $45,000.
I therefore award general damages of $45,000.

[117]

Mr Thompson must satisfy me on the balance of probabilities that he lost earning capacity and the extent of that loss: Todorovic v Waller [1981] HCA 72; (1981) 150 CLR 402; Medlin v The State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1. He is entitled to compensation for his lost earning capacity not loss of earnings: Medlin v The State Government Insurance Commission.
An assessment of lost earning capacity involves looking at not only what the future holds for an injured person but also what the future would have held if he had not been injured: Paul v Rendell (1981) 34 ALR 569, 571. In Mr Thompson's case that involves looking at what would have occurred in the past if he had not suffered the injury.
Mr Thompson's past loss of earnings from 12 August 2014 until 13 October 2016 including the Fox v Wood component has been agreed at $69,443.09. This amount includes worker's compensation (including taxation) up until 13 October 2016.
Mr Thompson claims an additional sum of $5,995 for that period because pursuant to the worker's compensation legislation he was not paid the wage he would have been earning but for the accident for the entire period as at some stage his payments reduced to 85% of that wage. The $5,995 reflects that difference. Consistent with my findings as to his work capacity that amount should be allowed.
The total of past loss of earnings allowed from 12 August 2014 to 13 October 2016 is therefore $75,438.09.
Mr Thompson claims further past loss of earnings from 14 October 2016 until trial of $88,000.44. This amount is in dispute.
The defendant says there is no evidence that the income Mr Thompson is capable of earning is less than what he would have earned as a roof carpenter.
They say that Mr Thompson completed training in project management and is fit for that vocation and for other vocations such as retail sales, customer service, dispatch, light store person or other like employment which avoids lifting anything above 15 kg to 20 kg as stated by Dr Slinger.
The defendant relies on Professor Mulvey's evidence which essentially shows that the income as a project manager or in any other of the categories referred to by Dr Slinger mean that Mr Thompson would have earned at least what he was earning as a roof carpenter. The defendant says that Mr Thompson was certified as fit to return to his pre-accident employment in May 2016 and went back to work full-time and was observed by Mr O'Regan to perform his duties well enough and worked until either July or August 2016 when he ceased working as a roof carpenter.
Whilst acknowledging that Mr Thompson underwent further surgery in August 2016 to remove metal work from his arm the defendant says Dr Keogh's evidence establishes that he would be able to fully return to work two weeks after that operation.
Mr Thompson's position is that he is not able to work as a roof carpenter. He says that since mid-2016 when his employment ceased he has been unable to obtain employment in spite of retraining to become a project manager. He says that he has lost 50% of his earning capacity and urges me to apply Bowen v Tutte (1990) Aust Torts Rep 81-043, 68,086 on the basis that,

[120]

In that case the court determined that the approach adopted by the learned trial judge of taking into account the existence of a residual earning capacity by deducting a set percentage from the figure he calculated for the total loss of earning capacity was correct (although the percentage was varied on appeal). The court acknowledged the need to give recognition to the difficulties an injured worker can have competing for and obtaining suitable employment in the type of circumstances thrown up by that case.
Where earning capacity has undoubtedly been reduced but its extent is difficult to assess (for example, because there is no evidence or no precise evidence of relevant earning rates), the court, doing the best it can, may properly assess damages in a global amount: see Chelini v Northern Territory Port Authority (1976) 12 ALR 519, 519 - 520; State of New South Wales v Moss [2000] NSWCA 133; (2000) 54 NSWLR 536 [72] - [78], [87].
In closing Mr Bruns suggested making a global award for future loss of earning capacity.
For reasons expressed in [193] - [201] I accept that whilst Mr Thompson failed to avail himself of work that was available from Mr O'Regan, he was, on the undisputed medical evidence, unable to continue to work as a roof carpenter from at least September 2016 when Dr Keogh corroborated Dr Fairhurst's February 2016 opinion that it was a good idea for Mr Thompson to seek a more sedentary occupation.
Whilst Mr Thompson left the employment of Mr O'Regan in about August 2016 because of increased work difficulties and because of what was clearly disharmony between the two of them, in my view it was reasonable for him to cease work from that time and I am satisfied that from September 2016 it was appropriate for him to commence looking for alternative employment. I find that Mr Thompson has been fit for the alternate occupations referred to by Dr Slinger since that date.
I would allow 12 months for Mr Thompson to complete an appropriate retraining course that is from September 2016 to September 2017. I find that some of the positions Mr Thompson applied for were outside his range of experience and competence, however I am satisfied he had been actively looking for employment but has been unable to find employment.
As past loss of earnings until 13 October 2016 has been agreed and included above I allow from 13 October 2016 to 1 September 2017, lost income of $1,070 gross per week or $863 net per week (46 weeks ) $49,220 gross or $39,698 net.
I would allow a further two year period, that is, to 1 September 2019 for Mr Thompson to re-establish himself in the labour market from which time I am satisfied that he would be able to earn at least his pre-accident earnings. During this period Mr Thompson could seek further qualifications if he so desired. The need to recognise the difficulties an injured worker can have competing for and obtaining suitable employment in the type of circumstances thrown up by this case needs to be reflected by giving sufficient time for retraining and adjustments to those circumstances. Recognition also needs to be given to the fact that even though Mr Thompson has obtained a project management qualification he has only eight years 'hands on' trade experience and due to the incident is unable to gain more experience as a roof carpenter and this will affect his ability to obtain a project manager's role and he may be competing with persons who may not have his history of injury.
Therefore for the period from 1 September 2017 to 1 December 2018, a total of 65 weeks, I allow gross economic loss of 65 x $1,070 = $69,550 or net economic loss of 65 x $863 or $56,095.

Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem

At a glance

Court

Decision date

Source

Judgment (129 paragraphs)

THOMPSON -v- J-CORP PTY LTD [2018] WADC 164 (30 November 2018)

Legislation Cited (2)

Cases Cited (24)