Apthorpe v QBE Insurance

te of New South Wales v Mikhael [2012] NSWCA 338 State of New South Wales v Moss (2000) 54 NSWLR 536; [2000] NSWCA 133 Stevens v Brodribb Sawmilling Company Pty Ltd (1986) 160 CLR 16; [1986] HCA 1 Strong v Woolworths Ltd (2012) 246 CLR 182; [2012] HCA 5 TNT Australia Pty Ltd v Christie [2003] NSWCA 47 Vairy v Wyong Shire Council (2005) 223 CLR 442; [2005] HCA 62 Wyong Shire Council v Shirt (1980) 146 CLR 40; [1980] HCA 12 Category: Principal judgment Parties: Kenneth Charles Apthorpe (Plaintiff) QBE Insurance (Australia) Limited (First defendant) HTE (Aust) Pty Limited (Second defendant) Christopher Wright (Third defendant) Burtwin Pty Ltd (Fourth defendant) Representation: Counsel: Mr G Petty SC with Mr P Kirby (Plaintiff) Mr S McCarthy (First defendant) Mr D Lloyd with Ms L Beange (Second defendant) Mr N Polin SC (Third defendant) Mr L Morgan (Fourth defendant)

Solicitors: Slater & Gordon (Plaintiff) Sparke Helmore (First defendant) Clyde & Co (Second defendant) Hall & Wilcox (Third defendant) Moray & Agnew (Fourth defendant) File Number(s): 2011/301709 & 2014/281269 Publication restriction: None

Table of Contents Nature of case [1] - [2] Scene of the plaintiff's fall [3] - [4] Parties [5] - [8] Causes of action pleaded [9] Issues [10] Documentary evidence [11] Witnesses who gave oral evidence [12] - [13] Credibility of testimony [14] - [41] The plaintiff [15] Mr Lavis [16] Inspector Hamilton [17] Mr Green [18] - [24] Mr Wright [25] - [34] Mr Nepia and Mr Lutelu [35] - [38] Mr JS Petty [39] Mr Burt [40] Mr Waddell [41] Factual background [42] - [125] (1) Plaintiff's background [43] (2) Accident circumstances [44] - [51] (3) Relevant antecedent events on site [52] - [95] (4) Injuries and treatment [96] - [97] (5) Subsequent medical and allied reviews [98] - [99] (6) Disabilities [100] - [108] (7) Work effects [109] - [116] (8) Domestic effects [117] (9) Mitigation [118] - [122] (10) Plaintiff's most likely pre-accident circumstances [123] - [125] Expert liability evidence form Mr Waddell [126] - [140] Issue 1 - The relevant risk of harm [141] - [142] Issue 2 - Respective duties of care [143] - [164] Duty of care owed by the occupiers [144] - [161] Duty owed by plaintiff's employer [162] - [164] Issue 3 - Alleged breaches of duty of care [165] - [231] Consideration of whether first defendant was negligent [170] - [189] Consideration of whether second defendant was negligent [190] - [201] Consideration of whether third defendant was negligent [202] - [214] Consideration of whether fourth defendant was negligent [215] - [231] Issue 4 - Alleged contributory negligence [232] - [257] Contributory negligence alleged by first defendant [237] Contributory negligence alleged by second defendant [238] Contributory negligence alleged by third defendant [239] Contributory negligence alleged by fourth defendant [240] - [241] Essence of contributory negligence allegations [242] - [243] Consideration of contributory negligence allegations [244] - [255] Conclusion as to alleged contributory negligence [256] Issue 5 - Causation [258] - [267] Issue 6 - s 151Z of Workers Compensation Act 1987 (NSW) [268] - [269] Issue 7 - Apportionment between defendants [270] - [282] Issue 8 - Assessment of damages [283] - [308] Non-economic loss [285] - [293] Past economic loss [294] - [296] Past loss of superannuation [297] Future economic loss and superannuation [298] - [303] Fox v Wood [304] Future out-of-pocket expenses [305] - [306] Past out-of-pocket expenses [307] Summary of damages assessment [308] Interim orders [309] - [310]

Nature of case

1. On the afternoon of Thursday, 18 September 2008, the plaintiff, Mr Kenneth Apthorpe, then aged 18 years, sustained facial fractures and other injuries in the course of his employment as a roofing labourer. He fell 6 metres to the ground, down a scaffolding void from a second storey scaffolding tower platform, on a residential building site at 7 Morna Point Road, Anna Bay, New South Wales.
2. The plaintiff's fall occurred in circumstances where he had stepped onto unsecured timber bridging planks resting between the edge of the sloping roof of the building and the platform of an adjacent scaffolding tower. The plaintiff's injuries have led to this multi-party consolidated litigation that is variously governed by the Civil Liability Act 2002 (NSW), the Workers Compensation Act 1987 (NSW) ("WC Act") and Workplace Injury Management and Workers Compensation Act 1998 (NSW) ("WIM Act").

Scene of the plaintiff's fall

1. The following post-accident photograph taken at roof level shows the general configuration of the area where the plaintiff was working, also showing the resultant void in the centre foreground after the bridging planks had fallen. [Exhibit "C", p 13]
2. The following post-accident perspective photograph taken from ground level shows the resultant void that was created by the movement of the planks after the plaintiff had fallen. [Exhibit "C", p 1]

Parties

1. The first defendant, QBE Insurance (Australia) Limited ("QBE") has been joined pursuant to s 6(4) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) because the head contractor for the building works, JS Petty Pty Ltd, it's insured, is in liquidation. The relevant director of that company was Mr John Petty. He did not give evidence in the proceedings because, despite extensive efforts on the part of the insurer, he could not be found.
2. The second defendant, HTE (Australia) Pty Ltd ("HTE"), was the contractor that erected the scaffolding on the site. The sole director of that company was Mr Christian Green, who gave evidence in the proceedings.
3. The third defendant, Mr Christopher Wright, was a self-employed fascia and guttering contractor who had carried out guttering work on the roof on the site. To carry out his work he had moved some of the timber bridging planks on the scaffold tower platform. Those works affected the safety of the site for other workers. Mr Wright gave evidence in the proceedings.
4. The fourth defendant, Burtwin Pty Ltd ("Burtwin"), was the roof tiling contractor for the site and it employed the plaintiff. At the time of his fall the plaintiff was removing and disposing of redundant roofing tiles from the roof of the building. He was carrying those tiles to the scaffolding tower platform and dropping them into a skip bin at ground level below. The principal of the fourth defendant was Mr David Burt. He did not give evidence in the proceedings.

Causes of action pleaded

1. The plaintiff's pleaded causes of action against each defendant are framed in negligence. He alleges various breaches of the duty of care owed by each of the contractors on the site. The regime of the Civil Liability Act applies to the first, second and third defendants. The regime of the Workplace Injury Management and Workers Compensation Act and the Workers Compensation Act applies to the proceedings against the fourth defendant.

Issues

1. A review of the pleadings, the evidence and the submissions reveals the following issues as calling for decision in these proceedings: 1. The identification of the relevant risk of harm. My reasons for decision on that issue appear between paragraphs [141] and [142] of this judgment; 2. The duties of care owed by the respective defendants. My reasons for decision on that issue appear between paragraphs [143] and [164] of this judgment; 3. Whether the respective defendants were negligent. My reasons for decision on that issue appear between paragraphs [165] and [231] of this judgment; 4. Whether there was contributory negligence on the part of the plaintiff. My reasons for decision on that issue appear between paragraphs [232] and [256] of this judgment; 5. The cause of the harm suffered by the plaintiff. My reasons for decision on that issue appear between paragraphs [258] and [267] of this judgment; 6. The manner and extent, if any, for the provisions of s 151Z of the WC Act to be applied to the factual circumstances of this case. My reasons for decision on that issue appear between paragraphs [268] and [269] of this judgment; 7. The manner in which liability should be apportioned between defendants. My reasons for decision on that issue appear between paragraphs [270] and [281] of this judgment; 8. Assessment of the heads of damage claimed by the plaintiff in respect of the applicable statutory regimes. My reasons for decision on that issue appear between paragraphs [283] and [308] of this judgment.

Documentary evidence

1. The plaintiff tendered documentary exhibits and photographs in the series "A" to "AA". The first defendant similarly tendered exhibits in the series "D1.1" to "D1.8". The second defendant tendered exhibits in the series "D2.1" to "D2.6". The third defendant tendered Exhibit "D3.1". The fourth defendant tendered Exhibits "D4.1" and "D4.2". Those exhibits will be referred to in these reasons where it becomes relevant to do so.

Witnesses who gave oral evidence

1. The following witnesses gave oral evidence: 1. The plaintiff gave brief oral evidence. The majority of his evidence substantially proceeded by way of his statement: Exhibit "F". There were no material challenges to his evidence; 2. Mr Damien Lavis, who was on site when the plaintiff fell; 3. Mr Nathan Hamilton, the WorkCover Inspector who investigated the accident; 4. Mr Christian Green, the scaffolding contractor; 5. Mr Christopher Wright, the fascia guttering contractor; 6. Mr Geoffrey Waddell, an expert civil engineer retained by the third defendant to provide an expert report. He was called by the plaintiff and gave his evidence by a telephone link from a remote location.
2. In addition to the oral evidence given by those witnesses a number of witness statements were tendered.

Credibility of testimony

1. Before identifying my findings of fact it is necessary to say something about the credibility and the reliability of the testimony of the respective witnesses.

The plaintiff

1. My impression of the plaintiff was that he gave credible and reliable testimony on all matters traversed in his evidence. His evidence as to how the accident occurred was understandably within a limited compass. His description of his injuries and related disabilities, and how those matters affected him, was supported by the medical evidence. His evidence on those matters was obviously understated. The defendants accepted the plaintiff was an impressive and honest witness and conceded that his evidence should be accepted. I accept his evidence in its entirety.

Mr Lavis

1. Mr Lavis, a tiler working on the site saw the plaintiff fall and went to his assistance. He provided a contemporaneous statement to WorkCover Inspector Hamilton, which was recorded at page 87 of his notebook. On 3 December 2008 he participated in a recorded interview with WorkCover Inspector Walker: Exhibit "Q". He had also given evidence of the events of the accident in the Industrial Court on 23 August 2011. Those accounts were closer in time to the events than the telephone evidence he gave at the hearing of these proceedings. The other parties variously conceded that Mr Lavis gave his evidence in a straightforward and frank way, and that his evidence should be accepted. I accept the submission made on behalf of the plaintiff that the substance of his evidence as given in the Industrial Court (at Exhibit "P", pp 103-106) is more likely to be correct and should be accepted.

Inspector Hamilton

1. WorkCover Inspector Hamilton arrived at the scene of the accident at about 4.45pm. He was suitably qualified and experienced in the investigation of industrial safety issues. In the course of his factual investigation he made sequential notes (Exhibit "Q") and took a series of photographs, 34 of which were collated and annotated. Those contemporaneous photographs were tendered in evidence (Exhibit "B" and Exhibit "C") and serve as a reliable record of what he saw. Plainly, his approach to the investigation was thorough and professional. He gave his evidence with careful attention to factual details and was not materially challenged in cross-examination. I concluded that his evidence should be accepted in its entirety.

Mr Green

1. Mr Green was responsible for the scaffolding. His contemporaneous conversation about the events of the plaintiff's accident was noted at page 87 of Inspector Hamilton's notebook. Those details were not challenged. Although the events occurred over 10 years ago, there is little room for doubt that those events would have been a significant and sentinel occurrence for Mr Green (his interview with the WorkCover inspector took place within a month of the accident), yet, as was observed in the plaintiff's submissions, he could recall virtually nothing about it: T138 - T140.
2. Mr Green's reaction to being informed that the wooden planks on the scaffolding platform had not been secured was curious. He apparently did nothing on the day of the accident or on the following day to investigate that allegation. The plaintiff has submitted, correctly in my view, that he did not need to make an inspection along those lines because he already knew the truth of that allegation. I accept the plaintiff's submission that in his evidence, Mr Green seemed reluctant and non-committal.
3. I consider that Mr Green's evidence on disputed matters of fact should be regarded with great circumspection. Mr Green was not present when the plaintiff's accident occurred. Without first-hand knowledge of the circumstances of the plaintiff's accident he was nevertheless dismissive of the suggestion that he might be in any way responsible for that accident.
4. On behalf of the second defendant, that is, Mr Green's company, it was submitted that there were no issues with the credibility of Mr Green's testimony. That submission did not sit well with the objective facts.
5. In his evidence, Mr Green retreated to a position of a lack of recall on matters of significance including an argument he had with Inspector Hamilton about the need, or lack of need, for tying down the platform planks.
6. Mr Green's evidence was to the effect that after the scaffolding tower had been raised, it was possible for the timber bridge between the roof and the tower to have been fully planked: T122.9 - T122.17. Whilst it was submitted that in cross-examination on this topic (at T129.21 - T130.12), that evidence was not challenged, I nevertheless decline to accept it because it was plain that Mr Green had proffered that evidence on the basis of a flawed and inaccurate reconstruction of the events.

Mr Wright

1. Mr Wright was the fascia and guttering contractor. I formed the view that his evidence was of limited reliability concerning a number of disputed matters of fact, and except on one matter, his evidence should be regarded with considerable reservation as to its reliability.
2. That exceptional matter which I considered to be reliable was Mr Wright's candid evidence that he had moved the platform planks before the plaintiff's accident. He did so in order to effectively carry out his own work. He said that he had easily pushed back the central planks of the scaffolding platform or timber bridge planks because those planks had not been secured. That evidence was consistent with the observations of Inspector Hamilton and Mr Lavis as to the absence of any evidence of wire ties or their remnants at the base of the scaffolding tower.
3. On the other matters, Mr Wright's evidence had elements of unreliability in that he had provided differing accounts as to if and when he had returned to the site after having worked there on 18 September 2008.
4. In fairness to Mr Wright, his account was given to the WorkCover Inspector Walker on 15 January 2010, which was some 16 months after the plaintiff's accident: Exhibit "J". In that account, he said he had returned to the site some weeks later, that is, between 17 November 2008 and 16 December 2008, which was months later, not weeks later: Exhibit "J"; answers to questions 36, 43, 51, 52, 53. In contrast, in his evidence given in the Industrial Court on 23 August 2011, Mr Wright repeatedly denied having returned to the site on 18 September 2008: Exhibit "H".
5. Mr Wright also gave vacillating evidence as to whether he had an assistant on the site. He later conceded that he could have been on the site on 18 September 2008: Exhibit "H", pp 144-145. Somewhat curiously, in his recollected account given in these proceedings, Mr Wright claimed a recollection of working on the site on the day of the accident, including as to the detail of the work that he had undertaken on that occasion. Those variations in the described circumstances did not sit well together.
6. Mr Wright's reliance on the content of his invoice dated 15 September 2008 as proof of the assertion that he was not on the site on 18 September 2008 was not probative. It is curious that although ultimately he admitted he was on site on the 18th, there was no invoice for his work on that date.

Mr Nepia and Mr Lutelu

1. Mr Nepia and Mr Lutelu, who were the scaffolders working on the site, provided contemporaneous statements about the plaintiff's accident. Those statements were admitted into evidence because they were unavailable to attend to give evidence. Due notice of this was given pursuant to s 67 of the Evidence Act 1995 (NSW).
2. In those statements (Exhibit "D2.2" and Exhibit "D2.3"), they claimed, without explanatory detail, to have secured the wooden planks and kickboards, and according to them, another scaffolder on site, a Mr McCrombie, was involved in a final inspection of their work.
3. The plaintiff makes the point, validly in my view, that neither Mr Nepia or Mr Lutelu could be cross-examined and therefore, their untested statements should be viewed with considerable reserve because at the time those statements were made, they must have known that their actions would be the focus of a WorkCover investigation. No explanation was given for the failure to call evidence from Mr McCrombie. I conclude that the evidence of Mr Nepia and Mr Lutelu should not be accepted where their evidence conflicts with other witnesses whose evidence was tested by cross-examination.
4. Accordingly, the plaintiff seeks the obvious inferential finding that the evidence of Mr Nepia and Mr Lutelu to the effect that the wooden planks and the adjacent kickboards were secured should not be accepted in the face of compelling and persuasive evidence to the contrary. I accept that submission.

Mr JS Petty

1. The builder, Mr JS Petty, could not be located despite extensive efforts to locate him. His statements to the WorkCover inspectors were tendered as admissions. The plaintiff submitted, correctly in my view, that little weight should be given to the exculpatory portions of those statements given the statements could not be tested and also having regard to the circumstances in which those statements were made. I accept that submission.

Mr Burt

1. The tiling contractor, Mr Burt, who was the plaintiff's employer at the time of the accident, although available, was not called to give evidence by telephone, as was earlier intimated: T29.7; T160.30. The admissions he had made to the WorkCover inspector were also tendered. The plaintiff submitted, as with the statements of Mr JS Petty, that the exculpatory portions of Mr Burt's statement should be given little weight in view of the fact that his evidence could not be tested, and having regard to the circumstances in which his statement was obtained. I also accept that submission.

Mr Waddell

1. Mr Waddell is a civil engineer who was engaged on the plaintiff's behalf. He gave his evidence through a telephone link. His training, qualifications and experience included workplace safety. His evidence was not contradicted by any expert of like qualifications. He considered and analysed a number of possible explanatory scenarios. His ultimate opinion served to support the plaintiff's case in an appropriately balanced and reasoned manner. His explanations were not inherently improbable. I accept his evidence in its entirety. My analysis of his report will be set out before my consideration of the issues calling for decision.

Factual background

1. Unless otherwise stated, in the paragraphs that immediately follow, I set out my findings of fact on the topics of: (1) the plaintiff's pre-accident background; (2) the accident circumstances; (3) relevant antecedent events that took place on the site; (4) the plaintiff's injuries and treatment; (5) subsequent medical and allied reviews; (6) the plaintiff's remaining disabilities; (7) work effects; (8) domestic effects; (9) mitigation; (10) the plaintiff's most likely circumstances but for the subject accident.

(1) Plaintiff's background

1. The plaintiff is presently aged 30 years. He and his wife have children aged 4 and 2 years. He obtained his HSC in 2007. He had excelled in sports and was physically fit. He sought active outdoor work. He obtained work as a labourer in the third defendant's roof tiling business. The proprietor, Mr Burt was a family friend. The subject accident happened on the plaintiff's first day at work in that employment.

(2) Accident circumstances

1. On 18 September 2008, the plaintiff arrived at the work site with his employer, Mr Burt, at about 7.30am. During the early part of the day he had been directed to work at ground level, handling tiles and tending to a tile elevator that was being used to convey tiles to roof level. In the afternoon Mr Burt allocated him to work on the roof to assist the tilers to deal with remnants of tiles that had been stripped off the roof.
2. That work required the plaintiff to dispose of tile off-cuts and broken tiles by dropping them into an open skip bin located at the base of an adjacent scaffolding tower located near the building at ground level, and rising to the level where he was working. In the course of that work, one such bin had become filled, so he decided to drop tiles into another nearby and similarly located bin which was not as full.
3. Initially, in the course of that work, the plaintiff had been standing on the roof and was working in conjunction with others to form a human chain, where tiles and pieces of tiles were being passed down the chain by hand for ultimate disposal. In the events immediately preceding his fall he was dropping redundant and broken tiles into skip bins below.
4. At about 3.30pm that afternoon, whilst the plaintiff was working at the roof edge, he was able to drop tiles to a skip bin below until that bin became full. He saw another less filled skip bin on the ground near the base of the scaffolding tower. He then decided to proceed to a position on the nearby scaffolding platform to enable him to aim and drop the tiles intended for disposal into that bin located on a concrete surface some 6 metres below.
5. To do so, the plaintiff had to walk on timber planks that bridged the gap between the sloping roof of the building and the timber planked surface of the scaffolding tower platform so that he could obtain access to the scaffolding platform deck to conveniently drop the tiles into the less filled bin below.
6. The plaintiff recalls picking up some tiles and whilst carrying them in his arms, he stepped onto the timber bridging planks with the intention of positioning himself on the scaffolding deck to be able to drop the tiles into the bin below from his position on the deck. The plaintiff then fell, although he does not actually recall the fall.

(3) Relevant antecedent events on site

1. In the antecedent events that preceded the plaintiff's accident a number of significant events occurred on the building site, as now follows.
2. At all material times, Mr JS Petty, the builder and head contractor for the site, retained the overall control and the responsibility for engaging and coordinating the on-site trades and building sub-contractors. In that context, the following background events occurred.
3. Between 3, 4 and 8 September, and possibly also on 9 September 2008, the scaffolder Mr Green and his employees were on the site erecting scaffolding around the perimeter of the building. In addition, an adjacent scaffolding tower had also been erected as an independent structure to be used for storing undamaged tiles that were intended to be salvaged for use on another site. The plan was for those tiles to be given to a friend of Mr Green for use on another construction site. The builder permitted those works and knew of the detail of those works. The original plan was for the redundant tiles to be temporarily stored on the platform of the scaffolding tower and to be removed later with the assistance of a mechanical crane. Subsequently, that plan was abandoned and the tiles were to be discarded. This was made known to the builder.
4. The original height of the scaffolding platform was positioned so that the fascia and guttering contractor, Mr Wright, could carry out his work on the site. However, the scaffolding and the platform were later raised to a greater height.
5. In those events, the builder and head contractor appears not to have taken into account that the erection of the adjacent scaffolding tower was to a height that blocked working access for some other tradesmen to undertake their work, particularly the fascia and guttering work to be carried out by Mr Wright at the front right corner of the roof of the premises.
6. As a result, when Mr Wright attended the site on 15 September 2008, he determined that the bridging planks between the edge of the roof and the scaffolding platform had to be moved so as not to impede his work: T219.37. Ultimately, Mr Wright moved those planks in order to facilitate his work on the site.
7. Before those events, when the scaffolding work was completed the scaffolders placed a "scaff tag" on the scaffolding ladder which would ordinarily serve to inform the builder, or other trades, and anyone looking at it, that all the work carried out by the scaffolder was safe and fit for its intended purpose.

(4) Injuries and treatment

1. The plaintiff's injuries were identified by the attending ambulance and hospital personnel. They noted the plaintiff had sustained fractured facial bones which were later identified as comprising a comminuted blow-out orbital fracture, a right eye injury, a laceration to his occiput, and tenderness of the lumbar spine. The plaintiff was transported to John Hunter Hospital for assessment and treatment: Exhibit "D", p 1;
2. Between 18 September 2008 and 21 September 2008, the plaintiff remained as an inpatient at John Hunter Hospital. He underwent CT scans which revealed a severely comminuted and depressed fracture through the medial wall of the right orbit with an associated fracture of the orbital wall, and significant surrounding soft tissue injuries. He underwent surgical treatment for a fracture of his right orbital floor and the medial wall of his right eye socket and the repair of lacerations to the right eyelid: Exhibit "D", p 2;

(5) Subsequent medical and allied reviews

1. The chronology of the plaintiff's subsequent assessment and treatment is as follows: 1. On 23 September 2008, at the referral of John Hunter Hospital, the plaintiff was assessed by Dr Barry Reed, an oral and maxillo-facial surgeon for evaluation of his grossly comminuted and grossly displaced orbital/mid-facial (nasoethmoidal orbital) fractures. Dr Reed recommended an open reduction and fixation with titanium plates and screws: Exhibit "D", pp 6-7; 2. On 29 September 2008, Dr Reed noted that the plaintiff's extensive right eye swelling prevented the planned surgery from proceeding. It was then postponed to 7 October 2008. Dr Reed also sought an ophthalmic review for the plaintiff: Exhibit "D", p 7; 3. On 10 October 2008, at Lake Macquarie Private Hospital, Dr Reed undertook surgical repair of the plaintiff's facial fractures. The plaintiff remained in that hospital until 16 October 2008: Exhibit "D", pp 8-10; 4. On 24 October 2008, the plaintiff was readmitted to hospital for wound debridement and removal of the surgical sutures: Exhibit "D", pp 11-12; 5. On 24 February 2009, the plaintiff was seen by Ms Bernadette Cross, a consultant psychologist, for treatment of his adjustment issues consequent upon his injuries. She diagnosed post-traumatic stress disorder ("PTSD") characterised by irritability, anger outbursts, intense fear, persistent re-experiencing of the underlying event, with recurrent intrusive and distressing recollections, avoidant behaviour, and difficulties concentrating, and social withdrawal. She predicted a treatment regime over 1 - 2 years was required: Exhibit "D", pp 19-25; 6. On 10 June 2009, at the request of the workers' compensation insurer, the plaintiff was assessed by Dr Graham Vickery, a consultant psychiatrist: Exhibit "D", pp 48-54. After reviewing the plaintiff's history and presenting complaints, Dr Vickery carried out a mental state assessment and then addressed a series of questions that he had been asked to consider. After noting the plaintiff's downcast and despondent state, and avoidance of eye contact, Dr Vickery noted the plaintiff's symptoms would not have otherwise developed but for the accident; the plaintiff was suffering from resolving PTSD; he had depression and anxiety entirely related to the subject injury. Dr Vickery believed (without supporting reasons) that the plaintiff's prognosis was optimistic for a full recovery: Exhibit "D", pp 52-54; 7. On 14 July 2009, Dr Reed carried out a number of periorbital incisions on the plaintiff's head for treatment of his residual facial deformity, globe depression, residual diplopia and medial canthal displacement following significant bone resorption after the earlier surgery: Exhibit "D", p 14; 8. On 13 August 2009, Ms Cross again reviewed the plaintiff. She noted his depressive symptoms had increased significantly. She also noted increased anhedonia, disinterest, amotivation, fatigue, insomnia, depressed mood, difficulty thinking clearly, indecisiveness and feelings of hopelessness. Ms Cross suggested the plaintiff's general practitioner review the plaintiff's medication options for those uncharacteristic symptoms, including his acopia: Exhibit "D", p 26; 9. On 25 September 2009, Dr Reed reviewed the plaintiff and suggested further surgery aimed at improving the cosmetic appearance of the right orbital region and facial deformity, with associated double vision: Exhibit "D", p 13; 10. On 10 December 2009, Ms Cross reviewed the plaintiff and informed the workers' compensation insurer and the plaintiff's general practitioner that the plaintiff was experiencing significant suicidal thoughts, which indicated a need for a crisis plan which, after implementation, resulted in a decrease in his symptoms. She outlined the need for the plaintiff to have more psychological treatment and occupational rehabilitation support to assist with a return to work: Exhibit "D", pp 27-28; 11. On 3 May 2010, Dr Reed referred the plaintiff to Dr Anthony Maloof, an ophthalmic surgeon, for further assessment and for corrective surgical treatment of the global depression of the right eye, and his medial canthal deformity: Exhibit "D", pp 14-15; 12. On 11 May 2010, the plaintiff saw Dr Maloof at the referral of Dr Reed. Dr Maloof recommended a three-staged surgical approach to first, repair a telecanthas with plating of the orbit and canthus reconstruction; secondly, repair of a nasolacrimal mucocoele; thirdly, lower eyelid wound revision and an associated canthus elevation procedure: Exhibit "D", pp 61-62; 13. On 18 June 2010, Dr Maloof wrote to the workers' compensation insurer to identify a likely recovery period of about a month following the first suggested surgery. However, he stated that there would not be a return to an entirely normal appearance: Exhibit "D", p 63; 14. On 5 August 2010, the plaintiff again consulted Dr Maloof. Dr Maloof's clinical notes concerning his 12 consultations with the plaintiff between 5 August 2010 and 16 August 2011 were tendered: Exhibit "D", pp 55-60; 15. On 11 August 2010, Dr Maloof performed the first stage of his planned surgery. This involved a scalp incision, and the insertion of a temporal bone graft to elevate the right orbit after removal of the old plates: Exhibit "D", p 64; 16. On 26 October 2010, Dr Maloof referred the plaintiff to Dr Neil Rowe, another specialist ophthalmic surgeon, for a further opinion on the management of the plaintiff's persistent hypertropia and for squint surgery: Exhibit "D", p 65; 17. On 14 December 2010, the plaintiff consulted Dr Rowe at the referral of Dr Maloof. Dr Rowe planned for squint surgery to take place after the already planned medial orbital remodelling and lacrimal surgery that was scheduled for February 2011: Exhibit "D", pp 77-78; 18. On 10 February 2011, Dr Maloof reviewed the plaintiff and wrote to Dr Rowe asking him to undertake the squint correction surgery: Exhibit "D", p 66; 19. On 28 March 2011, Dr Rowe referred the plaintiff to Professor Glen Gole, a tertiary ophthalmic surgeon, for consideration of further management and treatment: Exhibit "D", p 76; 20. On 27 April 2011, Ms Cross reported to the general practitioner that the plaintiff was working well in what was by then his new apprenticeship, and that he was overall, coping with the frustration and anxiety relating to having to wait for his next surgery. She noted some improvements concerning the plaintiff's problems with alcohol dependence, sleep difficulties, and cognitive acceptance of his facial changes and disfigurement: Exhibit "D", pp 29-30; 21. On 22 June 2011; Dr Maloof wrote to the workers' compensation insurer to seek approval for the three-stage surgery he had previously suggested: Exhibit "D", p 67; 22. On 20 July 2011, Dr Maloof undertook further surgery on the plaintiff which he described as right (eye) wound revision, debulking of orbital floor calvarial bone graft, endoscopic dacrocystorhinostomy, sub-mucus resection of the nasal septum, and middle turbinectomy: Exhibit "D", p 68; 23. On 2 August 2011, Dr Maloof again reviewed the plaintiff. He suggested the plaintiff proceed to squint surgery in about one month: Exhibit "D", p 69; 24. On 19 August 2011, Ms Cross prepared a psychological treatment report for the plaintiff's solicitor: Exhibit "D", pp 31-39. In that report (at pp 33 - 34), she noted the details of the plaintiff's wide-ranging and ongoing symptoms, and (at pp 35-37), she identified the fact that the plaintiff's PTSD is a severe disorder that is typically difficult to treat and was generally chronic and unremitting. She also noted (at pp 38-39), that the plaintiff had already attended some 36 psychological treatment sessions and she recommended the plaintiff continue to receive psychological intervention, particularly for adjustment symptoms relating to physical symptoms, psychological issues, including social anxiety due to his facial disfigurement, and his distress about his pending surgeries; 25. On 23 August 2011, Dr Maloof again reviewed the plaintiff as a prelude to further surgery: Exhibit "D", p 70; 26. On 29 August 2011, Dr Rowe wrote to Dr Maloof explaining the details of the surgery planned for 17 October 2011, namely a right sided superior rectus muscle resection: Exhibit "D", p 79; 27. On 28 September 2011, Ms Cross provided the plaintiff's solicitor with an updated psychological treatment report: Exhibit "D", pp 40-44. She noted (at p 41), that the plaintiff's chances of a full recovery were blocked by the ongoing need for repeat facial surgeries that set him back both physically and psychologically, instigating a potential long-term chronic condition. She also noted (at p 42), that full recovery was also largely blocked by the likelihood of the plaintiff's permanently altered facial appearance, body image distress, and related self-esteem issues, which she set out in persuasive detail. She recommended that the plaintiff be provided with ongoing psychological treatment for several years: Exhibit "D", pp 42-43; 28. On 13 October 2011, Dr Rowe wrote to the workers' compensation insurer seeking approval for the plaintiff's surgery to improve his cosmetic appearance and visual function: Exhibit "D", p 80; 29. On 17 November 2011, the plaintiff was booked for and received squint surgery on his right eye that was undertaken by Dr Rowe at the Epping Surgery Centre: Exhibit "D", pp 75-76, p 81; 30. On 6 December 2011, Dr Rowe arranged for a clinical meeting with other ophthalmic consultants to discuss further management of the plaintiff's condition, which was described as a frozen right orbit: Exhibit "D", p 82; 31. On 1 March 2012, Dr Rowe wrote to the plaintiff to advise of the outcome of the clinical review meeting, namely that he should be referred to Professor Glen Gole, a specialist in Brisbane: Exhibit "D", p 83, p 85; 32. On 16 April 2012, Dr Rowe ordered an MRI scan of the plaintiff's right orbit: Exhibit "D", p 84; 33. On 25 June 2012, Dr Rowe wrote to the medical records department of Westmead Hospital for details of the metal implants used in the previous surgery: Exhibit "D", p 86. He then also referred the plaintiff to Professor Gole: Exhibit "D", p 87; 34. On 1 November 2012, Dr Maloof wrote to the plaintiff's solicitor to describe the treatment he had provided until this time: Exhibit "D", p 71; 35. On 17 January 2013, Dr Rowe wrote a detailed report to the plaintiff's solicitor: Exhibit "D", pp 88-92. That report summarised the treatment the plaintiff had received to that point. Dr Rowe identified the plaintiff's ongoing problems with double vision and an upturning right eye, a right on left vertical tropia and right extropia and reduced downward eye movements, and the plaintiff's aesthetic concerns. He summarised the plaintiff's problems as being a frozen orbit consequent upon the previous orbital blow-out fractures, with soft tissue fibrosis and muscle scarring. Dr Rowe noted that post-injury surgeries had most likely exacerbated limitation in vertical eye movements; 36. On 1 February 2013, the plaintiff consulted Dr Michael Delaney, a consultant ophthalmic surgeon, at the request of his solicitor: Exhibit "D", pp 123-128. Dr Delaney considered the plaintiff's condition had not stabilised at that time: Exhibit "D", p 126; 37. On 11 April 2013, at the request of the plaintiff's solicitor, he was examined by Dr Hunter Fry, a plastic and reconstructive surgeon: Exhibit "D", pp 96-103. Dr Fry was pessimistic about cosmetic improvement. He considered (at p 98), that the plaintiff had a significant cosmetic disability, plus ophthalmic problems. He identified a severe disadvantage in the plaintiff's industrial capacity; 38. On 2 May 2013, Dr Rowe wrote to Professor Gole seeking further advice on possible treatments, including amniotic membrane re-placement surgery: Exhibit "D", p 93; 39. On 27 June 2013, Dr Maloof wrote to Professor Gole summarising the treatment to date, noting that the planned squint surgery had not yet taken place: Exhibit "D", p 72; 40. On 10 December 2013, Professor Gole reviewed the plaintiff and wrote to Dr Rowe with his further surgical management of his visual problems. Professor Gole identified the plaintiff's problems as being in "the too hard basket": Exhibit "D", p 103; 41. On 28 March 2014, Dr Rowe wrote to Professor Gole to enclose further medical records to assist him in the management of the plaintiff's condition: Exhibit "D", p 94; 42. On 2 June 2014, Professor Gole asked Professor Tim Sullivan to see the plaintiff in Brisbane for advice as he felt he could not perform any useful squint surgery in view of the fibrosis that was identified as being present at exploratory surgery: Exhibit "D", p 104; 43. On 28 October 2014, Professor Sullivan wrote to Professor Gole advising he would need to see further imaging scans before he could advise further: Exhibit "D", p 105; 44. On 3 November 2014, Dr Rowe wrote to Professor Sullivan in relation to the plaintiff's treatment: Exhibit "D", p 95; 45. On 5 January 2015, Professor Sullivan wrote to Professor Gole advising it would be reasonable to have exploratory surgery for removal of all or part of the calvarial bone graft and titanium plates. He also suggested some related tests and procedures: Exhibit "D", p 106; 46. On 11 June 2015, the plaintiff underwent surgical removal of an orbital plate and revision of the orbital floor fracture repair, performed by Professor Sullivan: Exhibit "D", p 107; 47. On 24 June 2015, Professor Sullivan wrote to Professor Gole to report on the recent surgery, noting post-operative improvement in horizontal eye movements and in most vertical movement: Exhibit "D", p 108; 48. On 14 October 2015, Professor Sullivan wrote to Professor Gole regarding a further dacrocystorhinostomy procedure carried out on this date: Exhibit "D", p 109; 49. On 9 November 2015, Professor Sullivan wrote to Professor Gole suggesting a further surgical repair to try and achieve cosmetic symmetry: Exhibit "D", p 110; 50. On 7 December 2015, Professor Sullivan performed right tarsal strip surgery on the plaintiff's right lower eyelid to correct an ectropion: Exhibit "D", p 111; 51. On 4 April 2016, Professor Sullivan reviewed the plaintiff, noting that his residual problems involved a significant eye motility disturbance, with some excess upper eyelid skin. He noted the plaintiff needed regular ongoing review, and he returned the plaintiff to the care of Professor Gole: Exhibit "D", p 112; 52. On 19 July 2016, the plaintiff was re-examined by Dr Delaney: Exhibit "D", pp 128-132. Dr Delaney considered (at p 130), that at that time, the plaintiff's visual system had by then stabilised to the point of maximum medical improvement, and noted (at p 131), that the plaintiff would be subject to occupational restrictions. 53. On 17 May 2017, at the request of his solicitor, the plaintiff was assessed by Dr Christopher Bench, a consultant psychiatrist: Exhibit "D", pp 113-122. Dr Bench diagnosed (at p 120), that the plaintiff's PTSD was in partial remission, with a Major Depressive and alcohol dependence episode in remission. Dr Bench considered (at pp 120-121), that the plaintiff's prognosis was guarded, with ongoing effects of self-consciousness due to facial scarring and asymmetry, difficulty socialising, which presented the plaintiff with lifelong implications; 54. On 28 November 2017, at the request of the solicitor for the first defendant, the plaintiff was assessed by Dr Robert Lewin, a consultant psychiatrist: Exhibit "D1.6". Dr Lewin reviewed the plaintiff's ongoing symptoms and (at p 10), considered "the residual features are insufficient to diagnose any psychiatric condition". His opinion was that the plaintiff's PTSD, his depressive condition and drinking problem was largely in remission. Dr Lewin accepted (at pp 10-11), that the plaintiff needed some allowance for future treatment; 55. On 2 October 2018, Dr Maloof wrote to the workers' compensation insurer advising of the need for the plaintiff to have a re-opening of earlier surgery with a revision endoscopic dacrocystorhinostomy, seeking approval for same: Exhibit "D", p 73; 56. On 21 February 2019, Dr Maloof prepared a supplementary letter which identified likely replacement intervals of approximately 5 years for the plaintiff's plastic tear duct drainage tubes, with associated costings. He attached some illustrative explanatory photographs to his report: Exhibit "U".

(6) Disabilities

1. In light of my acceptance of the plaintiff's historical accounts as were provided to those persons who examined him, I consider that in addition to his oral evidence and the evidence within his statement comprising Exhibit "F", it is appropriate to draw upon the various reports summarised above as evidence on relevant factual matters, particularly on matters of background, injuries, treatment and the plaintiff's ongoing disabilities: Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25, per Heydon JA at [70]; Ceva Logistics (Australia) Pty Ltd v Redbro Investments Pty Ltd [2013] NSWCA 46, at [142]-[143]; s 60 of the Evidence Act 1995.
2. The plaintiff's remaining disabilities are of a physical, cosmetic and psychological nature.
3. The result of the fractures and the multiple surgeries the plaintiff has had is that he has a significant right sided facial deformity. This includes a ptosed, drooped or downward looking right eye, due to anatomical alteration to the structures of his right orbit, and a related neurological disability. This in turn has left him with an abnormality in his gaze and vision due to a squint, which persists despite 10 attempts to date at remedial surgery, with the prospect of further surgery being required in the form of repeat or revision dacrocystorhinostomy.
4. The plaintiff has significant post-operative scarring not only around the right orbit, but a semi-circumferential scar on his scalp, from ear to ear, resulting from remedial surgery to gain appropriate internal access to his fractures in order to better reduce them. The plaintiff's scarring, especially the latter scar, is disfiguring. It is embarrassing to him. With his receding hairline and his need to wear his hair close cropped because of his work, it is an obvious cosmetic defect that affects him in that he is very self-conscious about his altered appearance.
5. The plaintiff's post-injury headaches have receded in frequency in recent times, but he still experiences them occasionally. The plaintiff has difficulty with spatial and distance judgments, and occasionally mispositions objects and difficulty trying to catch objects. He is unsafe on uneven ground due to his visual problems. He needs to wear corrective glasses for reading and driving.
6. The plaintiff finds he cannot watch television for prolonged periods due to the onset of headaches. His right eye is constantly watery and chronically bloodshot in appearance. He needs to periodically clean his lacrimal drainage tube. He has difficulty working in poor lighting conditions and needs to take more care to concentrate on his surroundings. This slows him down in comparison to his work colleagues. He has problems using some hand tools, such as hammers, due to his poor visual and spatial judgment. He can no longer work safely at heights.

(7) Work effects

1. The medical evidence makes various references to the effect of the plaintiff's injury on his future employment.
2. At an early stage, Dr Vickery noted that the plaintiff would be unlikely to undertake activities involving heights: Exhibit "D", p 54. Dr Bench endorsed that view from the psychiatric perspective, and extended that restriction to involve working near windows or work with ladders: Exhibit "D", p 121.
3. Dr Fry noted that the plaintiff had a loss of capacity for work involving multiple first time contact with members of the public or any work requiring binocular vision: Exhibit "D", p 98.
4. Dr Lewin noted that the major barrier to the plaintiff working was his physical condition and its consequences. He described the plaintiff's considerable apprehension about working at heights, with manifest symptoms of anxiety which impairs his function in that regard. Dr Lewin considered the plaintiff's capacity to work in the open labour market was affected by apprehensiveness and discomfort if he was required to work at heights or on scaffolding.
5. Dr Lewin felt that the plaintiff was otherwise completely unrestricted in his capacity to work: Exhibit "D1.6". In my view, that latter opinion was somewhat discordant with the other medical opinions. It will be revisited in connection with the assessment of the plaintiff's damages for future economic loss.
6. Dr Delaney was of the view that because of the plaintiff's limited binocular single vision he would have to take great care when working at heights or when he might be required to be near moving machinery. Dr Delaney also observed that the plaintiff would need to be slower than normal in carrying out some occupations, noting that it would be preferable that the plaintiff did not work at heights. Dr Delaney was also of the view that the plaintiff's day-to-day difficulties would extend to driving due to reduced depth perception, stereopsis and double vision: Exhibit "D", p 126.
7. Significantly, Dr Delaney noted that at present, the plaintiff is fortunate to have an understanding employer willing to accept the plaintiff's work restrictions. He added: "…Exposure to dust and debris when working underground exacerbates all his symptoms and if at all possible he would benefit from an occupation where he was not exposed to dust or noxious fumes in order to reduce his watering and its subsequent effects on his vision. It would therefore be preferable if he could find work in an environment where he was not exposed to these irritants. Mr Apthorpe should also avoid work at heights or near moving machinery due to his double vision and the risk of further injury, but with care and diligence he can continue working in such situations but will definitely be slower than normal." [Ex "D", p 131]

(8) Domestic effects

1. The plaintiff's physical and work restrictions will also have some carry-over effects on his capacity to perform some commonplace domestic tasks. This will undoubtedly give rise to a degree of an accident-related need for domestic assistance. The plaintiff makes no claim for such damages.

(9) Mitigation

1. Insofar as the claim for damages assessed pursuant to the Civil Liability Act is concerned, there is no statutory requirement relating to mitigation of damage. However, the plaintiff is under a common law duty to mitigate his loss. The defendants carry the onus of showing a relevant failure to mitigate the plaintiff's claim brought under the Civil Liability Act. No challenge was made to the plaintiff's evidence in that regard.
2. Insofar as the plaintiff's damages are assessed pursuant to the work injury damages scheme, the plaintiff is under a duty to mitigate his damage and he bears the onus of showing that he has taken all reasonable steps to do so. In that regard, s 151L of the Workers' Compensation Act provides: 151L Mitigation of damages (1) In assessing damages, the court must consider the steps that have been taken, and that could reasonably have been or be taken by the injured worker to mitigate those damages. (2) In particular, the court must consider the following matters: (a) whether the injured worker has undergone appropriate medical treatment, (b) whether the injured worker has promptly sought suitable employment from the employer or, if necessary, suitable alternative employment, (c) whether the injured worker has duly complied with the worker's obligations under Chapter 3 of the 1998 Act (Workplace injury management), (d) whether the injured worker has sought appropriate rehabilitation training. (3) In any proceedings for damages, the person claiming damages has the onus of proving that all reasonable steps to mitigate damages have been taken by the injured worker. However, the person claiming damages does not have the onus of establishing that the steps referred to in paragraphs (b)-(d) of subsection (2) have been taken, and the court assessing damages does not have to take the matters referred to in those paragraphs into account, unless it is established that before those steps could reasonably be expected to have been taken the worker was made aware by the employer or insurer that the worker was required to take those steps. (4) In any proceedings for damages, a written report by a person who provided medical or rehabilitation services to the injured worker is admissible as evidence of any such steps taken by that worker.
3. I find that the plaintiff has satisfactorily demonstrated that he has fulfilled all of the reasonable requirements of his duty to mitigate his damage irrespective of which scheme applies to the assessment of his entitlement to damages.

(10) Plaintiff's most likely pre-accident circumstances

1. Section 13 of the Civil Liability Act requires that in these reasons I identify my assumptions for making an award of damages for future economic loss including the required adjustments.
2. Before the accident the plaintiff was a fit and healthy young man who was not subject to any restrictions in his ability to compete for, gain and sustain, employment on the open labour market. In those circumstances, the plaintiff had at least average intelligence, and was well motivated to find suitable work. But for his injury, he would most probably have sought out physical work commensurate with his physical ability, including within a wide range of potential indoor and outdoor occupations in his locality, if not beyond. That said, at his age and with his unfettered state of health and wellbeing, he also had the unrestricted ability to explore and exploit possibilities for his economic advantage. Those circumstances have changed significantly, to his detriment.
3. As the plaintiff's claim for future economic loss does not involve the projection of a specific continuing loss, it is not necessary to identify those assumptions in any further detail or to identify the adjustments as this component of the plaintiff's claim is best assessed as a "buffer" amount: Penrith City Council v Parks [2004] NSWCA 201, at [55] - [60].

Expert liability evidence from Mr Waddell

1. The plaintiff relied upon the expert liability report of Mr Geoffrey Waddell, a civil engineer. His report was dated 7 November 2014: Exhibit "Z". Mr Waddell identified the extensive materials that were provided to him and he identified the assumptions he was asked to make: Exhibit "Z", pp 4-9. Although he had not carried out an inspection of the premises, he had sufficient information available to him to justify the opinions set out in his report: Exhibit "Z", p 9, par 5.2. His opinions were not the subject of opposing expert opinions.
2. Mr Waddell identified the relevant safety legislation and regulations and other publications, as follows: 1. Occupational Health and Safety Act 2000; 2. Occupational Health and Safety Regulation 2001; 3. National Standard for Construction Work (2005) declared in accordance with s 38 of the National Occupational Health and Safety Commission Act 1985; 4. WorkCover NSW Code of Practice entitled Safe Work on Roofs - Part 2: Residential Buildings, 2005; 5. WorkCover NSW publication entitled Erecting, Altering and Dismantling Scaffolding Part 1: Prefabricated Steel Modular Scaffolding - Industry Safety Standard, August 2008; 6. Australia / New Zealand Standard AS/NZ 1576,1:1995, Scaffolding Part 1 - General Requirements; 7. Australia / New Zealand Standard AS/NZ 4576 : 1995, Guidelines for Scaffolding.
3. Mr Waddell then set out his discussion and analysis between paragraphs 7.1 to 7.87 of his report between pages 27 to 42, excluding paragraphs 7.24, 7.25, 7.43 - 7.51, the tender of which was not pressed: T229.23.
4. In essence, Mr Waddell concluded that on the assumption that the timber planks that bridged the gap between the roof of the house and the scaffolding tower were not secured, the scaffolding would not or should not have passed a safety inspection. He also added that, in any case, the structure should be considered as unsafe, even if the planks had been secured by wire ties: Exhibit "Z", p 30, paragraphs 7.16-7.18.
5. Mr Waddell's report included a necessarily complex multi-scenario analysis because of the factual variations within the materials he was asked to analyse.
6. Mr Waddell made the obvious point that given the presence of the vertical scaffolding component in the bridging space between the roof edge and the scaffold platform, it would not have been possible to place sufficient planking over the bridging space and tie that planking into a secure position: Exhibit "Z", par 7.36.

Issue 1 - The relevant risk of harm

1. The first issue requiring consideration in this case is identification of the relevant risk of harm in order to enable a proper consideration of the duty of care owed with regard to averting the true source of injury: Roads and Traffic Authority (NSW) v Dederer (2007) 234 CLR 330; [2007] HCA 42, at [60]; Perisher Blue v Nair Smith [2015] NSWCA 90, at [98].
2. There is no dispute that the relevant risk of harm in this case was the possibility that persons working on the roof at a height above ground level, being about 6m, could foreseeably fall from either the roof or its surrounding scaffolding, platforms or bridging planks, thereby incurring the prospect of serious bodily injury if those structures were not made safe.

Issue 2 - Respective duties of care

1. There can be no dispute that each of the respective defendants owed the plaintiff a relevant duty of care. Those duties varied as between those defendants who were to varying degrees occupiers of the site, and the defendant who employed the plaintiff.

Duty of care owed by the occupiers

1. The builder on site, now represented by the first defendant, and the second and third defendants as contractors, were relevant occupiers of the site and they therefore owed a duty of care to persons such as the plaintiff who were foreseeably likely to be lawfully on the premises. However, some allowance must be made for necessary variations in the extent or scope of the respective duties of care owed by the different occupiers of the site.

The builder - now represented by the first defendant insurer

1. The duty of a builder on a site where other contractors had a foreseeable work presence has been discussed and considered in a range of authorities. A convenient summary of that consideration and review of authorities appears in Parkview Constructions Pty Ltd v Abrahim [2013] NSWCA 460, at [59]-[67], which is to a significant degree similar to the present case. A builder in occupation of a site owes a duty, to persons coming onto that site, to exercise reasonable care to avoid physical injury to such persons where there is a risk of foreseeable injury from the prevailing conditions on the site and where the builder has an element of control of the happenings or works on the site.
2. That duty arises in the context of the general duty to take reasonable care to prevent injury to persons in the position of the plaintiff, assuming the plaintiff would himself exercise reasonable care for his own safety: Roads and Traffic Authority (NSW) v Dederer (2007) 234 CLR 330; [2007] HCA 42, at [60].
3. It is of significance to note in this case that the builder's duty of care was not the same as the non-delegable duty owed by the plaintiff's employer.
4. The plaintiff in Parkview Constructions Pty Ltd v Abrahim, also stepped onto a scaffolding plank which, in that case, was not adequately supported. In that case, at [62]-[65] the Court of Appeal made reference to the decision of the High Court in Leighton Contractors Pty Ltd v Fox (2009) 240 CLR 1; [2009] HCA 35, and to another decision of the Court of Appeal in Ilvariy Pty Ltd trading as Craftsman Homes v Sijuk [2011] NSWCA 12. That was a case in which an experienced bricklayer was injured when he fell through a hole in scaffolding on a residential building site, where both the builder and the employer were jointly sued. In that latter case, at [19]-[21] it was stated: "19. ... The appellant was the builder in occupation of the building site, including the scaffolding. I agree that coordination of trades had nothing to do with the accident. The accident was caused by the dangerous state of the scaffolding which bore a reassuring sign that it was safe. The question is whether the appellant, as the builder having possession of the site, owed any duty to tradesmen such as Mr Sijuk to exercise reasonable care to make the site safe for them to work upon. Putting Papatonakis to one side for the moment, none of the cases relied on by the appellant concerned the duty of a builder as occupier of the site to exercise reasonable care in respect of the safety of the site upon which men and women would be invited to work. A building site and scaffolding on a building site can be dangerous places. People work at heights, machines are in use and other dangers exist. As the occupier with possession of the site for the undertaking of its contractual obligations for its own commercial benefit, a builder owes a duty to exercise reasonable care to avoid the exposure of persons coming on to the site to risk of injury from the dangerous condition of the site. In seeking to gainsay the existence of the duty of an occupier, the appellant referred to what Brennan and Dawson JJ said in Papatonakis at 30: "... where an independent contractor carrying on a particular trade is engaged by an occupier to work on his premises, the occupier is not under a duty to give warning of a defect in the premises if tradesmen of that class are accustomed to meeting and safeguarding themselves against defects of that kind." 20. The logical syllogism that the appellant sought to engage from this statement was that since Mr Sijuk should, in the exercise of due care for his own safety, have examined the scaffolding before he began work, any defect that he would have found was a defect in the premises that tradesmen such as Mr Sijuk were accustomed to meeting and safeguarding themselves against. 21. I reject this submission. This way of putting the matter transforms contributory negligence into a complete defence to the claim. It is not a fair application of what Brennan and Dawson JJ were saying. Tradesmen of Mr Sijuk's class are not accustomed to dealing with dangerous scaffolding, especially scaffolding that was said by a sign to be safe. Undoubtedly an occupier, especially a non-technical occupier, is entitled to expect that a tradesman will deal with dangers or defects which his trade skills allow him in the ordinary way to perceive and deal with. That does not mean that a builder is free not to exercise any reasonable care about the safety of the building site of which it has possession. The cases to which Brennan and Dawson JJ referred were: Christmas v General Cleaning Contractors Ltd [1952] 1 KB 141 - window cleaners on the building of a club where the defect in the lower sash was a common recognisable danger of everyday experience to window cleaners against which the window cleaning company should guard; Bates v Parker [1953] 2 QB 231 - window cleaners on a building where it was left to the contractor how to perform the work in circumstances where the occupier was not aware of the particular risk involved in the cleaners' method; Archer v Hall [1967] 1 NSWR 107 - a welder working on defendant's premises threw a metal pole from where he worked fouling power lines below; Wright (WH) Pty Ltd v Cth [1958] VR 318 - a crane driver on occupier's land; Pinborough v Minister of Agriculture (1974) 7 SASR 493 - pest controllers at a cold store falling through the weaker part of a roof, being a hazard commonly encountered by pest controllers in their work."

The scaffolding and the fascia contractors

1. As co-occupiers of the site the scaffolding contractor and the fascia contractor also owed a duty to the plaintiff along the lines referred to in [146] above. This was also in accordance with the general duty of care owed by an occupier of premises to take reasonable care to avoid injury to other persons, or in this case, workers, lawfully on the site: Caltex Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 258, at [102]-[104], [182]-[185].
2. The context of the respective duties owed by the scaffolding and fascia contractors as occupiers was in relation to the physical state of the premises over which those defendants had knowledge and control: Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254; [2000] HCA 61, at [13], [18]; Roads and Traffic Authority (NSW) v Dederer (2007) 234 CLR 330; [2007] HCA 42, at [45]. That duty was to take reasonable care on the supposition that, for his part, the plaintiff would also take reasonable care for his own safety: Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479; [1987] HCA 7, at p 488.
3. Questions as to the degree of control over the premises need to be considered: Laresu Pty Ltd v Clark [2010] NSWCA 180, at [82]-[83], following Bevillesta Pty Ltd v Liberty International Insurance Co [2009] NSWCA 16, at [54].
4. The consideration of the appropriate divisions of responsibility between defendants stands to be determined by the matter of control: Stevens v Brodribb Sawmilling Company Pty Ltd (1986) 160 CLR 16; [1986] HCA 1, at [47]-[48]. That will require closer consideration in connection with any apportionment to be achieved as between the respective defendants.

Duty owed by plaintiff's employer

1. The fourth defendant, as the plaintiff's employer, had a non-delegable duty to take reasonable care to avoid exposing its employees to unnecessary risks of injury: Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18; [1956] HCA 42, at p 25.
2. If the risk of injury was apparent, the employer was duty bound to take reasonable care to avoid the risk by devising a method of operation for performance of the required tasks by either eliminating the risk or providing adequate safeguards: Smith v Broken Hill Pty Co Ltd (1957) 97 CLR 337; [1957] HCA 34, at p 342.
3. The duty on the employer had to take into account the possibility of thoughtlessness, or inadvertence, or carelessness on the part of the employee, particularly in a case of repetitive work: Czatyrko v Edith Cowan University (2005) 214 ALR 349; [2005] HCA 14, at [12]-[13], following a line of well settled authorities there cited.

Issue 3 - Alleged breaches of duty of care

1. The question of whether any of the first, second or third defendants were negligent must be determined in accordance with s 5B and s 5C of the CL Act. For analysis and convenience, I will first consider the claims of negligence against the first, second and third defendants.
2. The question of whether the fourth defendant employer was negligent will then follow. In contrast the position of the first, second and third defendants, and the analysis of that question must be determined according to common law principles: Wyong Shire Council v Shirt (1980) 146 CLR 40; [1980] HCA 12.
3. Section 5B of the CL Act provides: 5B General principles (1) A person is not negligent in failing to take precautions against a risk of harm unless: (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person's position would have taken those precautions. (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things): (a) the probability that the harm would occur if care were not taken, (b) the likely seriousness of the harm, (c) the burden of taking precautions to avoid the risk of harm, (d) the social utility of the activity that creates the risk of harm.
4. Section 5C of the CL Act provides: 5C Other principles In proceedings relating to liability for negligence: (a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and (b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and (c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk.
5. In the case of the first, second and third defendants, to obtain a finding of negligence against those defendants, the plaintiff must first satisfy the three pre-conditions provided by s 5B(1)(a) to (c) and then the requirements of s 5B(2) of the CL Act.

Consideration of whether first defendant was negligent

1. The plaintiff's amended statement of claim pleads the following allegations of negligence against the first defendant in relation to the acts neglects and details of the head contractor, JS Petty Pty Ltd: 1. Failed to inspect or adequately inspect the scaffolding and planking; 2. Failed to ensure that the planking was properly secured; 3. Allowed the plaintiff to walk on the planking when it knew or should have known that it was dangerous to do so; 4. Failed to observe that the plaintiff was in a position of peril in the circumstances; 5. Failed to warn the plaintiff that the planking was unsecured; 6. Failed, by allowing the third defendant to work on site at the same time as the fourth defendant's team of workers, to supervise and coordinate activities on the site in a safe manner; 7. Failed to realise that there was a real risk (if not an inevitability) that the third defendant might move or otherwise interfere with the bridge/deck planking of the existing scaffolding tower in order to carry out his work; 8. Failed to carry out an immediate and thorough inspection of the scaffolding after the third defendant had substantially completed his work or when he realised that the third defendant had returned to the site on the morning of 18 September 2008 to continue or complete his work; 9. Failed to fence, barricade or otherwise prevent access to the bridge leading from the roof edge to the deck of the tower.
2. Those allegations may be conveniently summarised as failures that centre around matters of site supervision, coordination of trades, ensuring safe access, or barricading of areas of potential danger in relation to the risk of falling.
3. The starting point of the consideration of whether the first defendant was negligent requires an examination of the evidence in terms of the three pre-conditions that are identified in s 5B(1) of the CL Act.

Section 5B(1) considerations - first defendant

1. I find that from the perspective of the builder it was foreseeable that any person working at a height on the site, particularly on the roof in juxtaposition to the scaffolding platform, might, in the absence of the implementation of prudent precautions and the provision of barriers, fall to the ground. The plaintiff has therefore satisfied the first pre-condition for a negligence finding to be made against the builder: s 5B(1)(a) of the CL Act.
2. I find that from the builder's perspective the risk of injury from a fall from the roof or scaffolding platform was not insignificant. Given the height of the works, about 6 metres from ground level, there was a significantly high prospect that the identified risk of harm could materialise if reasonable precautions against the risk were not taken and implemented. The plaintiff has therefore satisfied the second pre-condition for a negligence finding to be made against the builder: s 5B(1)(b) of the CL Act.
3. In my view, from the builder's perspective there are no rational arguments against the taking of reasonable precautions against the identified risk of harm as was identified in the evidence of Mr Waddell as reviewed at [126] to [139] above. The builder was in charge of the site and was responsible for the coordination of the sub-contractors and the work of the different trades who had a presence on the site.
4. As the head contractor in charge, the builder must be taken to have known that an available scaffold platform was likely to be used as a means of access to the roof area by tile workers stripping the roof of redundant tiles. Similarly, the builder must have known that the bridging planks provided as a means of access between the roof and the scaffolding platform would be moved or otherwise interfered with by the fascia contractor for him to gain access to the area of his works. That much was evident from the juxtaposition of the scaffolding bridge and the edge of the roof.
5. As the head contractor, the builder should be taken to have known that which the scaffolding contractor knew, namely, that "if people want to pull the scaffold apart they will": Exhibit "M", Q 537. That required the taking of reasonable precautions.
6. Notwithstanding those circumstances, Mr JS Petty, as the responsible builder, took no steps to carry out an inspection "from the top" in the area of the works, as he had done with regard to inspection at the rear of the site, where he thought the tilers would be walking: Exhibit "M", Q 265 and following: Q289; Q311 - Q312.

Section 5B(2) considerations - first defendant

1. If the precautions identified by Mr Waddell were not taken, then on a prospective view, it is plainly apparent that there was a high probability of a worker coming to harm on site if access to the unsecured bridging planks was attempted. The likelihood of such access was high in the absence of the area being closed off from access by physical means, and by the provision of warning signs: s 5B(2)(a) of the CL Act.
2. If someone were to fall from the bridging planks to the concrete on the ground below, there was a high risk of serious bodily injury or death in such an event: s 5B(2)(b) of the CL Act.
3. In my view, accepting Mr Waddell's evidence, in the circumstances, the burden on the builder in taking precautions against the risk of harm was not an unduly burdensome task.
4. At the very least, irrespective of the nature of the burden, the applicable regulatory and safety codes and standards should have been complied with as an ordinary feature of the builder undertaking such works. In the context of the works on site, the precautionary steps of inspection, barricading, isolating, roping off and posting warnings, and using tie wires to secure the bridging planks, involved comparatively little time, effort and cost: s 5B(2)(c) of the CL Act.
5. The activity of carrying out building work on a commercial basis involved social activity of significant utility. There was no social utility in carrying out such work without proper regard to commonplace, applicable, and readily observable safety standards: s 5B(2)(d) of the CL Act.
6. In view of the foregoing analysis, I find that the first defendant builder was in breach of the duty of care owed to the plaintiff, and was therefore negligent in the manner alleged by the plaintiff.
7. I now turn to a consideration of the plaintiff's claim that the second defendant was negligent.

Consideration of whether second defendant was negligent

1. The plaintiff's amended statement of claim pleads the following allegations of negligence against the second defendant scaffolder: 1. Failed to inspect or adequately inspect the scaffolding and planking; 2. Failed to ensure that the planking was properly secured; 3. Allowed the plaintiff to walk on the planking when it knew or should have known that it was dangerous to do so; 4. Failed to observe that the plaintiff was in a position of peril in the circumstances; 5. Failed to warn the plaintiff that the planking was unsecured; 6. Failed to warn the plaintiff that the planking was likely to move.
2. Essentially, those allegations may be conveniently summarised as being failures to inspect and secure the area of scaffolding works that provided bridging plank access to the scaffold platform, and a failure to warn other contractors and their workers in relation to the unsafe and unsecured areas comprising the bridging planks to that platform. The evaluation of the claim that the second defendant scaffolder was negligent must also proceed according to the statutory sequence required by s 5B of the CL Act as identified at [171] - [190] above.

Section 5B(1) considerations - second defendant

1. From the perspective of the second defendant scaffolder, as with the builder, as analysed at [173] above, it was also foreseeable that any person working at a height near the roof might fall to the ground if reasonable care was not taken with regard to the apparently accessible bridging planks: s 5B(1)(a) of the CL Act.
2. From the perspective of the second defendant scaffolder, as with the builder, as analysed at [174] above, the identified risk of harm from a person falling to the ground could materialise in a "not insignificant way" absent the taking of reasonable precautions against that risk: s 5B(1)(b) of the CL Act.
3. From the perspective of the second defendant scaffolder, as with the builder, as analysed at [175] above, in the context of the scaffolder's role on the site where the scaffolding tower and bridging planks would be left in juxtaposition to the roof where roofing work was being undertaken, where it was reasonably foreseeable that the tiling team could use the scaffolding platform and the bridging planks as access to that platform, the need to take precautions against the risk of someone accessing and falling from those planks necessarily arose for prudent consideration in the interests of safety. Those precautions included the need for proper inspection of the area and a risk evaluation, liaising with the builder for appropriate coordination of the works, securing the planks, or alternatively, preventing access to the planks, including by barricades, roping off, and by appropriately worded warning signage: s 5B(1)(c) of the CL Act.
4. Those findings lead to a consideration of the requirements of s 5B(2) of the CL Act with regard to the scaffolder. That consideration now follows.

Section 5B(2) considerations - second defendant

1. As with the builder, if the scaffolder had not taken the precautions identified by Mr Waddell, there was plainly an apparent and prospectively high probability that a worker accessing the unsecured bridging planks could come to harm from falling where the bridging planks remained accessible without restriction: s 5B(2)(a) of the CL Act.
2. This was in circumstances that it should have been plainly apparent to the second defendant scaffolder that if someone fell from those bridging planks, there was a high risk of serious bodily injury or death from such a fall: s 5B(2)(b) of the CL Act.
3. As with the builder, and accepting the evidence of Mr Waddell as I do, I consider that the likely burden on the second defendant scaffolder in taking precautions against the risk of harm was not unduly burdensome. The scaffolder must be taken to have known of the applicable regulatory and safety codes which were identified by Mr Waddell as being applicable to the scaffolding work, and he should have complied with those codes when carrying out that work on the site. This would have required a final inspection, tying down the bridging planks, and informing the builder of the performance or non-performance of those actions, which involved negligible time, cost and inconvenience: s 5B(2)(c) of the CL Act.
4. As with the builder, the carrying out of scaffolding work on a residential building site was an activity of social utility. There was no social utility in carrying out such work without proper regard to commonplace and readily observable safety standards s 5B(2)(d) of the CL Act.
5. In view of the foregoing analysis, I find that the second defendant scaffolder was in breach of the duty of care owed to the plaintiff, and was therefore negligent in the manner alleged by the plaintiff.
6. I now turn to a consideration of the plaintiff's claim that the third defendant was negligent.

Consideration of whether third defendant was negligent

1. The plaintiff's amended statement of claim pleads the following allegations of negligence against the third defendant fascia and guttering contractor: 1. Removed the wires securing the timber planks in position; 2. Moved the timber planks (after removing the wires securing them) later returning them to their former position but unsecured; 3. Failed to rope off, barricade or otherwise prevent access to the bridge leading from the roof to the deck of the tower; 4. Failed to warn the builder (or anyone working at the residence) that the timber planks had been interfered with and were not secured.
2. Those allegations may be conveniently summarised as a failure to restore and secure the bridging planks after moving them to obtain access to the roof gutter, and failure to warn of the resultant danger posed by the moved planks.
3. The evaluation of the claim that the third defendant fascia and guttering contractor was negligent must also proceed according to the statutory sequence required by s 5B(1) of the CL Act as identified at [171] to [190] above.

Section 5B(1) - considerations - third defendant

1. From the perspective of the third defendant fascia and guttering contractor, as with the builder and the scaffolder, it was also foreseeable that any person working at a height near the roof might fall to the ground if reasonable care was not taken concerning the state in which the bridging planks were left: s 5B(1)(a) of the CL Act.
2. From the perspective of the third defendant fascia and guttering contractor, as with the builder and the scaffolder, the identified risk of harm from a person falling to the ground could materialise in a "non insignificant" way if reasonable precautions were not taken against that risk: s 5B(1)(b) of the CL Act.
3. From the perspective of the third defendant fascia and guttering contractor, as with the builder and the scaffolder, in the context of the fascia and guttering contractor's role on the site where he would be moving the bridging planks and leaving them in an unsecured state without taking the precaution of informing other contractors, especially the head contractor builder of that fact, gave rise to a risk of harm that could have been avoided by the taking of such precautions. This was particularly so because the bridging planks that Mr Wright moved were not his, they were not erected or located for him, and he ought to have let the builder know what he had done in relation to those planks: s 5B(1)(c) of the CL Act.
4. Those findings lead to a consideration of the requirements of s 5B(2) of the CL Act with regard to the fascia and guttering contractor. That consideration now follows.

Section 5B(2) - considerations - third defendant

1. As with the builder and the scaffolder, the guttering and fascia contractor ought to have known that an alteration to the juxtaposition of the components comprising the bridging planks on any above ground structure on the site carried with it the prospectively high probability that a worker accessing the unsecured and altered configuration of those planks could come to harm from falling a considerable distance to the ground: s 5B(2)(a) of the CL Act.
2. In the described circumstances, the fascia and guttering contractor, also working at a considerable height above the ground, ought to have known that a worker on site falling to the ground below would be at a high risk of incurring serious bodily injury, if not death: s 5B(2)(b) of the CL Act.
3. Accepting Mr Waddell's evidence as I do, it ought to have been plainly apparent to the fascia and guttering contractor that the bridging planks, whilst still in situ, could have foreseeably had some purpose that was integral to the work of other contractors on the site. In those circumstances, taking the precaution of seeking out a prior discussion with the builder at the very least, if not also with the scaffolders and the tilers, before moving those planks, was not unduly burdensome. Similarly, it would not have been unduly burdensome for the fascia and guttering contractor to have informed the builder, if not other contractors, after having moved the planks so that the safety significance of his actions could have been considered by relevant persons to determine whether this had impacted on how they should discharge their duty of care form that point: s 5B(2)(c) of the CL Act.
4. As with the builder and the scaffolding contractor, the actions of the fascia and guttering contractor which had the effect of altering the safety dynamics on the site, without taking consequential and necessary safety precautions, and thereby creating a danger for other workers on the site, was of no social utility: s 5B(2)(d) of the CL Act.
5. In view of the foregoing analysis, I find that the third defendant fascia and guttering contractor was in breach of the duty of care owed to the plaintiff, and was therefore negligent in the manner alleged by the plaintiff.
6. I now turn to a consideration of the plaintiff's claim that the fourth defendant was negligent.

Consideration of whether fourth defendant was negligent

1. The plaintiff's amended statement of claim pleads the following allegations of negligence against the fourth defendant tiling contractor and employer of the plaintiff: 1. Failing to carry out before the commencement of the work any inspection of the scaffold deck and bridge as to ensure that the timber planks thereof were secure and the area safe for employees to walk; 2. Failing to warn the plaintiff that the scaffolding deck and bridge had not been inspected; 3. In allowing the plaintiff to use the bridge and deck when they should have known that it was unsafe to do so; 4. Failing to ensure that access to the deck and bridge was prevented by a barrier, fence or usual warning sign; 5. Failing to ensure that the plaintiff was appropriately warned (having regard to his age and experience) that he should not use the scaffold deck and bridge; 6. Failing to adequately supervise the performance of the work; 7. Failing to warn the plaintiff that the timber planks of the scaffold deck and bridge were not secured and, accordingly, were unsafe to walk on.
2. Those allegations may be conveniently and relevantly summarised as being failures to inspect, to ensure safe access, to supervise the plaintiff, and failure to warn the plaintiff of danger due to the existence of unsafe and unsecured walkway access to the scaffolding platform.
3. An employer owes a non-delegable common law duty of care to employees to take reasonable care to avoid exposing them to unnecessary risks of harm from injury. Czatyrko v Edith Cowan University [2005] HCA 14; (2005) 214 ALR 349, at [12]; Schellenberg v Tunnel Holdings Pty Ltd [2000] HCA 18; (2000) 200 CLR 121, at [101]; TNT Australia Pty Ltd v Christie [2003] NSWCA 47.
4. The employer's liability in negligence stands to be assessed prospectively according to conventional common law principles, which distil into the question of whether a reasonable employer in the position of the fourth defendant would have foreseen that the system of work or work tasks required of the plaintiff involved a risk of injury to him.
5. If the answer to that question is in the affirmative, then the next question for determination is what a reasonable employer in the position of the fourth defendant would have done in response to the risk, balanced commensurately with the magnitude of the risk, the degree of probability of its occurrence, and the expense, difficulty and inconvenience of taking alleviating action against such risks: In Wyong Shire Council v Shirt (1980) 146 CLR 40; [1980] HCA 12, at [15].

Issue 4 - Alleged contributory negligence

1. The question of whether there was contributory negligence on the part of the plaintiff must be determined in accordance with the requirements of s 5B of the CL Act as well as in accordance with s 5R and s 5S of that Act. The respective defendants bear the onus of establishing contributory negligence: s 5D and s 5E of the CL Act.
2. The plaintiff had not observed a gap in the bridging planks: T50.45 - T50.50; T51.1 - T51.32. He was not able to detect a safety deficiency in the planks: T52.5 - T52.30. He could not recall receiving any warnings about such matters: T56.35 - T56.48; T57.4 - T57.9.
3. On behalf of the plaintiff, in light of his evidence on this topic, it was submitted that by carrying a few tiles by hand, in front of him, this could impair his forward vision: T53.40. It was further submitted that no better alternative work method was identified, and no further cross-examination was directed to the issue of contributory negligence. It is therefore necessary to evaluate whether the defendants have discharged the onus they bear on this issue.
4. Section 5R of the CL Act provides: 5R Standard of contributory negligence (1) The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm. (2) For that purpose: (a) the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and (b) the matter is to be determined on the basis of what that person knew or ought to have known at the time.
5. Section 5S of the CL Act provides: 5S Contributory negligence can defeat claim In determining the extent of a reduction in damages by reason of contributory negligence, a court may determine a reduction of 100% if the court thinks it just and equitable to do so, with the result that the claim for damages is defeated.

Contributory negligence alleged by first defendant

1. The first defendant pleaded the following particulars of contributory negligence against the plaintiff: 1. Failing to keep any or any proper lookout; 2. Failure to pay sufficient attention to his immediate environment; 3. Failure to take any, or any reasonable care, for his own safety; 4. Failure to watch where he was placing her (sic for his) feet; 5. Failure to work with appropriate caution; 6. Failure to take any reasonable precautions.

Contributory negligence alleged by second defendant

1. The second defendant pleaded the following particulars of contributory negligence against the plaintiff: 1. Failed to take any proper care for his own safety; 2. Failed to keep any or any proper lookout; 3. Failed to heed the warnings and directions of others not to access or use the platform or timber planks; 4. Failed to obtain instructions, or proper instructions, for the safe performance of his duties; and 5. Failed to observe that the bridging timber planks of the deck of the scaffold tower were missing, unsecured and/or pushed back.

Contributory negligence alleged by third defendant

1. The third defendant pleaded the following particulars of contributory negligence against the plaintiff: 1. Failing to take care for his own safety; 2. Failing to maintain a proper lookout; 3. Failing to undertake an adequate inspection of the scaffold bridge before walking on it; 4. Failing to follow instruction and training.

Contributory negligence alleged by fourth defendant

1. The fourth defendant pleaded the following particulars of contributory negligence against the plaintiff: 1. Failing to keep a proper lookout; 2. Failing to take proper precautions in all of the circumstances for his own safety; 3. Being inattentive; 4. Failing to observe that the timber planks were not properly affixed and to avoid the danger created thereby; 5. Failing to perform the particular task in accordance with the system of work set in place by the fourth defendant.
2. In final submissions, the fourth defendant did not seek a contributory negligence finding against the plaintiff.

Essence of contributory negligence allegations

1. In essence, the allegations the defendants make against the plaintiff relate to various iterations of a failure to exercise reasonable care by taking precautions, including by keeping a proper lookout for his own safety, and a failure to heed warnings and directions as to safe access to the timber planks on the scaffolding platform.
2. For the purpose of analysis it is convenient to consider those allegations in two categories, that is, those alleged by the employer, and those alleged by the non-employer occupiers of the site.

Consideration of contributory negligence allegations

1. In final submissions the first defendant builder conceded that as the plaintiff was reliant on the skills of his employer, if there were to be any findings of contributory negligence this should only be to a minor degree. The second defendant scaffolder no longer pressed the issue of contributory negligence. The third defendant fascia and guttering contractor submitted there was a basis for a finding of contributory negligence but it would be difficult to see the basis for any significant finding of contributory negligence in excess of 10 to 15 per cent. The fourth defendant employer did not actively maintain the claim of contributory negligence.
2. In relation to the plaintiff's claim of primary liability against his employer, it is important to bear in mind that the employer's non-delegable duty of care owed to the plaintiff was not adequately discharged by delegating to the untrained and unskilled plaintiff, the task of analysing questions of risk, and devising and implementing reasonable precautions against risk: Czatyrko v Edith Cowan University (2005) 214 ALR 349; [2005] HCA 14.
3. In my assessment, the allegations of contributory negligence raised by the employer in sub-paragraphs (4) and (5) of [240] above, if relied upon by the other defendants, can be disregarded for two substantive reasons, as follows.
4. First, no-one was called by the fourth defendant employer to give evidence of the detail of the system of work that had been set for the plaintiff, and similarly no such evidence was given as to what if any safety instructions were given to the plaintiff as to the manner in which he was required to implement or to adhere to that system. Secondly, there is no evidence that the plaintiff knew or ought to have known that the bridging planks had not been properly secured or affixed. That latter enquiry was one for the plaintiff's employer to pursue before directing the plaintiff to carry out his work at the height above the ground, including a position from where he could drop tiles and pieces of tiles into skip bins below.
5. In determining whether the remaining pleaded contributory negligence allegations raised by the fourth defendant have substance insofar as they may be relied upon by the other defendants, it is important to recognise that the plaintiff fell into the void that was created by the collapse of those unsecured planks. There is no evidence from which to fairly infer or find that he should have foreseen that possibility from the appearance or the juxtaposition of those bridging planks in relation to the scaffolding platform, and from the structures of the roof where one end of the planks had been resting.

Conclusion as to alleged contributory negligence

1. For the above reasons, I have therefore concluded that each of the defendants has failed to prove the claims that there had been contributory negligence on the part of the plaintiff.
2. I now turn to my consideration of the issue of causation of loss.

Issue 5 - Causation

1. The question of whether the plaintiff's injuries were relevantly caused by the negligence of the respective defendants must be determined according to the requirements of s 5D of the CL Act, which provides: 5D General principles (1) A determination that negligence caused particular harm comprises the following elements: (a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and (b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (scope of liability). (2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party. (3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent: (a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and (b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest. (4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.
2. The factual findings in this case of the successive failures of each defendant to observe and to discharge their duties of care indicates this is a case where there was a presence of more than one set of conditions necessary for the occurrence of the plaintiff's injury: Strong v Woolworths Ltd (2012) 246 CLR 182; [2012] HCA 5, at [20], apply s 5D(1)(a) of the CL Act.
3. Where such separate conditions are shown to exist, factual causation, the first step in a s 5D analysis of causation, must be demonstrated in relation to each nominated defendant for the liability of each defendant for damages to be established: State of New South Wales v Mikhael [2012] NSWCA 338, at [96].
4. In my assessment, in undertaking the causation analysis permitted by Vairy v Wyong Shire Council (2005) 223 CLR 442; [2005] HCA 62, at [124], on the balance of probabilities, the irresistible conclusion is that, were it not for the negligence of the respective defendants, the bridging planks to the scaffolding platform would not have been left in an unsecured state, those planks would not have collapsed and fallen away when the plaintiff placed his weight upon them, and therefore, but for those circumstances, the plaintiff would not have fallen from the roof and sustained his injuries: Strong v Woolworths Ltd (2012) 246 CLR 182; [2012] HCA 5, at [32]; Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem (2009) 238 CLR 420; [2009] HCA 48, at [53].

Issue 6 - Consideration of s 151Z of Workers Compensation Act 1987 (NSW)

1. Section 151Z of the Workers Compensation Act provides: 151Z Recovery against both employer and stranger (1) If the injury for which compensation is payable under this Act was caused under circumstances creating a liability in some person other than the worker's employer to pay damages in respect of the injury, the following provisions have effect: (a) the worker may take proceedings both against that person to recover damages and against any person liable to pay compensation under this Act for payment of that compensation, but is not entitled to retain both damages and compensation, (b) if the worker recovers firstly compensation and secondly those damages, the worker is liable to repay out of those damages the amount of compensation which a person has paid in respect of the worker's injury under this Act, and the worker is not entitled to any further compensation, Note. See also section 151N of this Act and section 10 of the Law Reform (Miscellaneous Provisions) Act 1965 in relation to the application of other laws concerning contributory negligence. (c) if the worker firstly recovers those damages the worker is not entitled to recover compensation under this Act, (d) if the worker has recovered compensation under this Act, the person by whom the compensation was paid is entitled to be indemnified by the person so liable to pay those damages (being an indemnity limited to the amount of those damages), (e) if any payment is made under the indemnity and, at the time of the payment, the worker has not obtained judgment for damages against the person paying under the indemnity, the payment is, to the extent of its amount, a defence to proceedings by the worker against that person for damages, (e1) if any payment is made under the indemnity and, at the time of the payment, the worker has obtained judgment for damages against the person paying under the indemnity (but judgment has not been satisfied), the payment, to the extent of its amount, satisfies the judgment, (f) all questions relating to matters arising under this section are, in default of agreement, to be settled by action or, with the consent of the parties, by the Commission. (1A) In the application of subsection (1) (b) in relation to a worker who recovers motor accident damages to which Part 4 of the Motor Accident Injuries Act 2017 applies in respect of an injury: (a) the liability of the worker to repay the amount of compensation already paid does not include any amount of compensation already paid under Division 3 (Compensation for medical, hospital and rehabilitation expenses etc) of Part 3 of this Act in respect of the injury concerned, and (b) the liability of the worker to repay the amount of any permanent impairment compensation and pain and suffering compensation already paid is limited to the amount of any damages recovered for non-economic loss. (1B) Any amount that is excluded under subsection (1A) from the amount that a worker is liable to repay out of damages is excluded from the indemnity to which a person is entitled under subsection (1) (d). (2) If, in respect of an injury to a worker for which compensation is payable under this Act: (a) the worker takes or is entitled to take proceedings independently of this Act to recover damages from a person other than the worker's employer, and (b) the worker also takes or is entitled to take proceedings independently of this Act to recover damages from that employer, the following provisions have effect: (c) the damages that may be recovered from the person by the worker in proceedings referred to in paragraph (a) are to be reduced by the amount by which the contribution which the person would (but for this Part) be entitled to recover from the employer as a joint tortfeasor or otherwise exceeds the amount of the contribution recoverable, (d) the amount of the contribution that the person is entitled to recover from the employer as a joint tortfeasor or otherwise is to be determined as if the whole of the damages were assessed in accordance with provisions of Division 3 as to the award of damages, (e) if the worker does not take proceedings against that employer or does not accept satisfaction of the judgment against that employer, subsection (1) applies as if the worker had not been entitled to recover damages from that employer, except that: (i) if the compensation paid by that employer exceeds the amount of the contribution that could be recovered from that employer as a joint tortfeasor or otherwise - the indemnity referred to in subsection (1) (d) is for the amount of the excess only, and (ii) if the compensation paid by that employer does not exceed the amount of that contribution - subsection (1) (d) does not apply and the employer has, to the extent of the compensation so paid, a defence to an action for such a contribution. (3) This section applies to proceedings taken independently of this Act by a person to whom compensation is payable under this Act in respect of the death of a worker as a result of an injury. (4) If a worker is liable under subsection (1) (b) to repay any money out of damages recovered by the worker, the worker is not liable to repay the money out of any damages payable after the date of recovery by way of periodic or other payments for loss of future earnings or earning capacity or for future expenses. (5) For the avoidance of doubt, this section applies and is taken always to have applied to the recovery of compensation or damages, whether or not the compensation or damages were paid under an award or judgment. For example, compensation or damages may be paid under an agreement.

Issue 7 - Apportionment between defendants

1. As observed at sub-paragraph (5) of [262] above, the plaintiff was injured because of a confluence of negligent actions by each of the respective defendants. [T257.44 - T257.47]
2. The first three defendants have exchanged cross-claims which seek an apportionment of their respective liabilities to pay damages to the plaintiff pursuant to s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW). There was no cross-claim by the employer against the other defendants. The cross-claims are as follows: 1. The amended first cross-claim by the builder's insurer QBE, was against the scaffolder, the fascia contractor and the employer where the allegations were essentially that: 1. The scaffolding contractor erected the scaffolding but failed to carry out a full re-inspection after the scaffold was raised and failed to ensure the timber planks were properly positioned and secured, failed to secure the safety of other workers on the site and failed to prevent access to the scaffold tower platform; 2. The fascia contractor moved the timber planks on the platform so as to enable the installation of guttering, and in doing so, made unauthorised modifications to the scaffolding, failed to advise the builder of the changes made, failed to install warning signs of the modifications so made, and failure to prevent access to the scaffolding tower; 3. The employer failed to institute and maintain a safe system of work for the plaintiff, including failure to inspect the scaffolding, failure to identify hazards, failure to implement a safe system for disposing of the redundant roof tiles; 1. The amended second cross-claim by the scaffolding contractor against the builder's insurer, QBE, the fascia contractor, and the employer, where the allegations were essentially that: 1. The builder, as site controller, site manager and site supervisor failed to undertake precautions, inspections or require remedial scaffolding work, failure to ensure safe access and monitoring of the works and general systemic failure to manage safety issues on the site; 2. The fascia and guttering contractor made unauthorised alterations to the bridging planks arrangement and failed to ensure the platform planks were left properly positioned and secured, failure to provide barriers to access, failure to warn other contractors on site of prevailing safety issues, failure to provide inspection and safety compliance; 3. The employer failed to institute and maintain a safe system of work for the plaintiff, and allegations along the lines outlined at sub-paragraph (1)(c) of [270] above; 1. The amended third cross-claim by the fascia and guttering contractor was against the builder's insurer, QBE, the scaffolding contractor, and the employer, where the allegations were essentially that: 1. The builder failed to coordinate the trades and sub-trades on the site and failure to communicate with those persons and provide reasonably safe premises for those persons to carry out their work; 2. The scaffolding contractor failed to provide appropriate and safely secured scaffolding components, failed to comply with applicable standards and failed to prevent access to unsafe areas; 3. The employer's failure to provide a safe system of work for the plaintiff including along the lines outlined at sub-paragraph (1)(c) of [270] above.

Issue 8 - Assessment of damages

1. In view of my findings that all of the defendants were negligent and that their respective negligence had causally contributed to the plaintiff's damages, it becomes necessary to assess the plaintiff's entitlement to damages both according to the requirements of the CL Act, and according to the WC Act. The following table identifies the heads of damage claimed by the plaintiff and the differentiation in the claimability of those heads of damage under those two statutory assessment schemes: Head of damage CL Act WC Act (a) Non-economic loss Claimable Not claimable (b) Past economic loss Claimable Not claimable (c) Past loss of superannuation Claimable Claimable (d) Future economic loss and superannuation Claimable Claimable (e) Fox v Wood Claimable Claimable (f) Future out-of-pocket expenses Claimable Not claimable (g) Past out-of-pocket expenses Claimable Not claimable

1. The claim for non-economic loss damages is not maintainable against the plaintiff's employer, the fourth defendant. Only damages for past and future loss of earnings are claimable against the fourth defendant: s 151G of the WC Act. The consideration of the claimable heads of damage now follows.

Non-economic loss

1. The plaintiff's claim for non-economic loss is limited to the claim against the first three defendants. It must be determined according to the requirements of s 16 of the CL Act, according to a comparison to a most extreme case.
2. Non-economic loss for the purpose of that section relevantly means any one or more of the elements of pain and suffering, loss of the enjoyment of the amenity of life, and disfigurement: s 3 of the CL Act. The assessment of non-economic loss requires a factual determination of the representative percentage compared to a most extreme case, rather than a discretionary assessment as would be the case in an assessment of common law general damages: Hall v State of New South Wales [2014] NSWCA 154, at [31]-[32]. The monetary assessment is then necessarily dictated by the percentage assessment.
3. The parties made disparate submissions on the appropriate percentage assessment for s 16 damages. On behalf of the plaintiff, the submitted assessment was 55 per cent: MFI "3". On behalf of the first defendant as supported by the second and third defendants, the submitted assessment was 30 per cent: MFI "5".
4. The assessment of non-economic loss should not involve considerations of reward, generosity or parsimony, but instead, it must represent fair compensation for the plaintiff's pain and suffering and for the loss and interference with the amenity and the enjoyment of his life.
5. Those losses include the loss of satisfaction and sense of achievement that would ordinarily flow from advancement in a chosen career, and the satisfaction and sense of achievement in taking up economic opportunities. Those losses stand apart from the plaintiff's claim for loss of earning capacity for which he will be separately compensated. The matters emerging from the medical evidence, as summarised at [109] to [115] above, compared to his most likely pre-accident circumstances, as summarised at paragraphs [123] to [125] above, are clear indications that the plaintiff's current and future work restrictions provide a reasonable basis for viewing this component of loss as being significant.
6. Having regard to all the factors that aggregate to inform the assessment of non-economic loss, I consider that the assessed percentage should be significant. This is because of the nature of the medical impact the plaintiff's injuries and treatment have had upon him as already summarised at [96] to [99] above, and the identified ongoing disabilities already identified at [100] to [117] above.

Past economic loss

1. The plaintiff's submissions on past loss of income totalled $76,558, which were then rounded down to $76,500: MFI "3".
2. That sum comprised an initial period of absence from work between 19 September 2008 and February 2010 at an average rate of $648 per week gross or $587 per week net, and then for various differences between part time and full time employment, and various periods off work for the 10 surgeries the plaintiff had undertaken before the hearing. The plaintiff's present income is $1,279 net per week.
3. It is not necessary to dissect and analyse the plaintiff's claim for past economic loss because the defendants have conceded that the plaintiff's past loss of income is in the net amount of $77,685. I therefore assess the plaintiff's damages for past economic loss in the net amount of $77,685.

Past loss of superannuation

1. Based on the defendant's concession as to the plaintiff's past economic loss of $77,685 at the conventional rate of 11 per cent, I assess the plaintiff's damages for past loss of employer funded superannuation in the amount of $8,545.

Future economic loss and superannuation

1. The parties are in agreement that the plaintiff's claim for damages for future economic loss should be the subject of an award by way of a lump sum cushion that is not precisely calculable, rather than seeking to project a precise recurring weekly monetary loss: s 13 of the CL Act.
2. Although the plaintiff has succeeded in obtaining relatively well paid mitigatory employment in the mining industry and has maintained employment initially since 2010 and then again from 2014 to date. He has nevertheless suffered a permanent impairment to his otherwise unfettered and unrestricted earning capacity. On behalf of the plaintiff it was submitted that the appropriate sum to be awarded for this head of damage should be $200,000. In contrast, on behalf of the defendants, it was submitted that the appropriate amount should be $100,000. Each of those approaches included allowances for loss of future superannuation.
3. For a claim for damages for future loss of earning capacity to be monetarily assessable, it is not only necessary for the plaintiff to show that he has suffered an impairment in his earning capacity, but it is also necessary for him to show that such an impairment also has the ongoing deleterious effect of causing a financial loss: Medlin v State Government Insurance Commission (1995) 182 CLR 1; [1995] HCA 5; Graham v Baker (1961) 106 CLR 340; [1961] HCA 48.
4. In my view, the plaintiff's ongoing disabilities as outlined at [100] to [108] above, compared to his pre-accident situation as outlined at [123] to [125] above, as supported by the medical evidence summarised at [98] above, and [109] to [115] above, mandate that a significant allowance be made for damages for future loss of earning capacity.
5. An impairment of earning capacity does not require demonstration of a present and ongoing calculable weekly loss. The absence of a recurring weekly loss does not mean that the plaintiff will not suffer a diminution in his earning capacity. The medical evidence as to the plaintiff's future and disadvantageous work restrictions are identified and summarised at [109] to [115] above. In such cases, as difficult as the task might be, an assessment must nevertheless be undertaken, even if only in the form of a lump sum economic buffer: State of New South Wales v Moss (2000) 54 NSWLR 536; [2000] NSWCA 133; Penrith City Council v Parks [2004] NSWCA 201; Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13.

Fox v Wood

1. The plaintiff is entitled to damages that account for the tax that was deducted from his weekly workers' compensation payments: Fox v Wood (1981) 148 CLR 438; [1981] HCA 41. The parties have accepted a rounded down "rule of thumb" approach of 20 per cent to identify those payments, which I therefore assess in the amount of $2,300.

Future out-of-pocket expenses

1. The plaintiff submitted that an award for future treatment expenses should be allowed in the amount of $30,000. That sum comprised three elements, those being first, an annual amount of $500 for treatment to flush the plaintiff's lacrimal drainage tubes, secondly, an allowance of $5,000 as a lump sum for further surgical replacements of those drainage tubes, and thirdly, reviews of unspecified frequency by the plaintiff's local medical officer. The defendants' submissions accepted that an allowance of $25,000 should be made for this head of damage.
2. Given the plaintiff's relatively young age and the likelihood of further treatment being required from time to time, I consider the amount claimed by the plaintiff to be reasonable in the circumstances. I therefore assess the plaintiff's damages for future treatment expenses in the amount of $30,000.

Past out-of-pocket expenses

1. The plaintiff has identified an amount of past out-of-pocket expenses in the amount of $152,437 to which there was no demur. In final submissions it was indicated that amount was likely to require upward adjustment for recent treatment, the cost of which has not yet been identified. In those circumstances leave was given for the final figure for past out-of-pocket expenses to be updated before the entry of final judgment: T257.13 - T247.24. In the interim, the plaintiff's past out-of-pocket expenses are assessed in the provisional amount of $152,437.

Summary of damages assessment

1. My assessments of the plaintiff's damages are summarised as follows: Head of damage CL Act WC Act (a) Non-economic loss $317,500 Nil (b) Past economic loss $77,685 $77,685 (c) Past loss of superannuation $8,545 $8,545 (d) Future economic loss and superannuation $200,000 $200,000 (e) Fox v Wood $2,300 $2,300 (f) Future out-of-pocket expenses $30,000 Nil (g) Past out-of-pocket expenses $152,437 Nil Total $788,467 $288,530

Interim orders

1. The plaintiff has established his entitlement to damages awards under both damages schemes. Before entering judgment in his favour I will hear from the parties as to the appropriate orders to be made in light of s 151Z of the WC Act and my findings as to apportionment between the defendants and as to the appropriate orders for costs.

Orders

1. Within 7 days of today's date the parties are to bring short minutes with draft orders that reflect the monetary effect of my findings in these reasons.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 April 2019