Daher v Gold & Eagle Constructions Pty Ltd

Background

1. Prior to and including on 20 August 2019, Gold & Eagle traded as Renovate8 and conducted the business of residential building and construction work. Mr Miller was the owner of premises in Burton Street, Randwick and retained Gold & Eagle to undertake renovation work there on his behalf for a contract price of $484,225 incl GST. Mr Daher was the sole director of CDM Contractors Pty Ltd. Some time prior to 20 August 2019, Gold & Eagle contracted with CDM to undertake the installation of timber flooring at the premises. CDM employed Mr Daher and he personally undertook the work that his company had contracted with Gold & Eagle to perform. As at 20 August 2019, that work was still in progress.
2. Part of the premises consisted of a concrete slab constructed over a cellar. The slab had two penetrations that in due course were intended respectively to provide light on the one hand and access to the cellar on the other hand. The penetration through which access to the cellar was to be gained was approximately 1.2m by 700mm square. A ladder was in place at the access penetration as a temporary means of climbing into and out of the cellar. That penetration was the one through which Mr Daher fell.

The pleaded case

1. Mr Daher's amended statement of claim was filed on 27 April 2022. It particularises no less than 35 separate allegations of negligence against both defendants, without discriminating between them, even though many of the allegations relate to breaches of various construction and work safety regulations which presumably were intended to apply exclusively to Gold & Eagle and not to Mr Miller.
2. Mr Daher pleads the following facts which he alleges describe the physical circumstances of his fall: "11. The renovation of the premises involved, inter alia, works above a cellar whose flooring was 3 metres below the area of work. 12. At all material times to permit access to the cellar there was a penetration through the floor area where the renovation works were being undertaken, which at all material times prior to 20 August 2019 was covered by a wooden plank, timber, and plywood slab. 13. The penetration was a stair opening where, upon completion of the renovation works, access would be gained to the cellar below. 14. The said wooden plank, timber and plywood slab was safe and secure to walk over. 15. On 20 August 2019 the first and second defendants removed or alternatively caused to be removed the wooden plank, timber and plywood slab and covered the penetration with a plastic sheet. 16. Further and in the alternative at all material times the first and second defendants were aware that by 20 August 2019 the wooden plank, timber and plywood slab had been removed and that the penetration had been covered with a plastic sheet. 17. The said covering of the penetration with plastic sheeting created a danger and hidden trap for those lawfully walking or working in the area of the penetration. 18. On 20 August 2019, the plaintiff during and in the course of his contracted works, was walking in the room with the penetration, when he stepped on the plastic sheeting and fell through the penetration 3 metres to the cellar floor below in consequence whereof he was severely injured…"
3. Mr Daher alleges that in those circumstances, the defendants were each negligent. Some of the ways in which that allegation is particularised in the amended statement of claim are as follows: (e) Removing or causing to be removed the wooden plank, timber, and plywood slab from the penetration. (f) Covering the penetration with plastic sheeting. (g) Failing to install scaffolding within the penetration. (h) Failing to fence or barricade the penetration to prevent persons on site inadvertently walking upon the plastic sheeting. … (j) Failing to warn the plaintiff of the presence of the plastic sheeting and the removal of the wooden plank, timber and plywood slab. (k) Allowing the plaintiff into the area of renovations containing the penetration when it was unsafe to do so. (l) Failing to cover the penetration with a suitably secure covering that would take the weight of any person stepping onto it. (m) Covering or causing the penetration to be covered with plastic sheeting thereby removing the visual cue of the danger below. … (z) Failing to ensure that the plywood cover was not removed by any person unless and until the unprotected void could be made safe with a scaffold under the void area or handrails around the void.
4. Gold & Eagle and Mr Miller rely on defences in identical or cognate terms. Despite the fact that these defences are very detailed, reference to them at some length is necessary in order to highlight precisely what parts of the defences are relevant and what parts of them are not.
5. To begin with, both defendants admit, in answer to paragraph 18 of the amended statement of claim, that on 20 August 2019, Mr Daher stepped on plastic sheeting covering the penetration and fell through onto the floor below. That uncontroversial concession immediately focusses attention upon the single and simple overarching issue in these proceedings of who is legally responsible for the creation and maintenance of an unguarded slab penetration on a building site above a 3 metre drop that was only covered with a plastic sheet for some period preceding, but in any event in place right up to the instant of, Mr Daher's fall. This question is returned to later in these reasons.
6. The defendants also pleaded a case that Mr Daher was guilty of contributory negligence by failing to take any or any adequate care or precautions for his own personal safety. That contention was (relevantly) particularised as a series of allegations that he: 1. removed the plywood slab originally covering the penetration; 2. caused the penetration to be exposed; 3. failed to cover the penetration adequately; 4. failed to observe the penetration; 5. failed to navigate the area in a safe manner; 6. failed to take an alternative route to avoid the penetration; 7. failed to adopt a safe system of work; 8. failed to keep a proper lookout.
7. These particulars of contributory negligence are effectively repeated in the context of an allegation that Mr Daher exposed himself to an "obvious risk", as well as an "inherent risk", of harm within the meaning of the Civil Liability Act 2002. The defendants then contend that Mr Daher's contributory negligence is such that his entitlement to damages must be reduced by 100% thereby defeating his claim entirely: see s 5S of the Civil Liability Act. The defendants then plead a reliance on ss 5F, 5G, 5H and 5I of the Civil Liability Act, to which further reference is made below.

The evidence

1. Beyond the anodyne recitation of the facts upon which Mr Daher relies, and the agreed fact that he stepped on a plastic sheet covering the penetration and fell to the ground below, the witness accounts of what precisely led up to that event diverge in significant respects. The significance of these differences, if any, and the question of whether such differences as there are affect anything more than the issue of contributory negligence, is considered later in these reasons. The original versions are to be found in the respective witness statements as follows.

Mr Daher

1. Mr Daher's first witness statement is dated 18 December 2023. Limited at this stage to his description of what occurred when he fell, the following paragraphs of that statement should be noted: "49. I arrived at [the premises] approximately 6.38am. 50. I started unloading my tools to concrete slab at the back. This took about approximately 5-10 min. 51. Before I completed finishing unloading, Paul [Metlege] arrived. 52. After Paul arrived, we started setting up the laser beam in order to determine the floor level so that I could lay the batons down ready for the timber flooring. 53. Paul and I walked through the work area in the house and we discussed what we needed to do and how we were going to do the job. This process took about 1 hour to an hour and half. 54. Part of the renovation works involved the creating of a means of access to a wine cellar that was about three metres below the new suspended flooring, on the ground floor, which was being installed as part of the renovation. There was a hole in the area of the suspended concrete flooring that was installed called a penetration. It was intended to build a stairway from the top of that hole to the ground floor cellar below to enable access to the wine cellar on the ground floor three metres below. At all times that I had been on the site the penetration had been covered with plastic, a timber plank and plywood to prevent those onsite falling through the otherwise open hole in the flooring. These items were always secured. The penetration was approximately 3m x 700mm x 1.2m. 55. There was in fact a second penetration in the suspended concrete flooring a little further along which was also covered with plywood and plastic. This penetration was intended ultimately to be covered with glass to act as a skylight into the wine cellar. 56. The work area of the extension around the penetration was a bit dark and there was no lighting supplied. 57. Paul and I were in the kitchen discussing the job when the owner [Mr Miller] who was in the living area, started removing the wood. When Paul asked what he was doing, the owner said words to the effect: 'I will prepare this for you as I want you to get started with the work and not waste time.' 58. After the owner removed the plywood, he was putting plastic over the hole and he was using tape over the edges to hold it down. He then asked me for some concrete nails but it was in my van, so I went into my van to get him some concrete nails. 59. My tools were already on the ground, and he used my hammer and then nailed four nails on the corners of the plastic. While he was doing this, he said words to the effect: 'I don't want my wine to get dusty, I want to cover the hole.' 60. I didn't say anything in response, but I spoke to Paul in Arabic and asked him what is he doing and he shouldn't remove it and ask him to leave it. Paul said to me to leave it and that he would sort it out after we had finished our set up and work discussions. 61. When a penetration is opened on a building site by removing the barrier that protects you from falling through it then you would invariably put up a barrier around the penetration or install handrails around it to stop people accidentally walking over the area and falling through the hole. When Paul or I removed the covering of a penetration, we would always do this. 62. During this time, Paul and I were still talking about the job. We talked for a further half an hour or so before the accident happened. 63. Paul and I were in the kitchen area. We were almost at the end of the discussion/set up before I was going to start the actual work. 64. Between about 8.00am and 8.30am, Paul asked me to grab the tape measure which was in the living area (the room next door to the kitchen) where the penetration was. I went to the living area and squatted down to pick up the tape measure. As I rose to my feet, I turned my body to walk back towards Paul, took a step and my foot fell through the penetration which was now only covered with plastic. I had been used to the plywood and solid covering always being there in my time previously on site. As there was plastic around the building site the presence of the plastic did not act as a trigger to alert me to believe that the penetration was now effectively uncovered. I believe if there had been no plastic there but merely an open void, this would have given me a clear visual indication and alerted me to not walk in the area. After picking up the tape measure, I elevated my body and in a turning motion walked towards Paul. I did not realise there was no flooring over the penetration at that point in time as I was in deep conversation with Paul about the works to be done on the job. 65. After turning around, I stepped into the hole which resulted me falling down the three metre drop to the floor below. I tried to stop myself from falling as I went into the hole but it was to no avail. When I hit the concrete floor below, I heard a snap in my left foot/ankle. I ended up falling on to the floor, laying [sic, lying] down in pain. I was in shock. Initially I was in excruciating pain but unaware of the damage that was done and which I ultimately required surgery."

Mr Metlege

1. Mr Metlege's witness statement is dated 5 March 2024. Also limited at this stage to his description of what he says occurred when Mr Daher fell, the following paragraphs of that statement should be noted: "27. The penetration that [Mr Daher] fell through on the 20th of August 2019 was protected with a sheet of structural formwork plywood. This was the penetration designed for the staircase. 28. The sheet of structural formwork plywood was approximately 17-19mm thick. It was a laminated timber and was used in the formwork prior to pouring concrete. It's thick enough for you to be able to stand on and put wheelbarrows on it. 29. The approximate size of the penetration was maybe 70-80cm wide by maybe 1-1.2 metres long. 30. The plywood cover was laid flat on the concrete floor and then drilled into the concrete slab. Then either plugs or Dyna-bolts were screwed through the plywood with a screw gun to fix it into the concrete. 31. I think 8 screws were used to fix the penetration cover over to the concrete. Not less than 6. 32. The plywood cover was secured in place so that it could not accidentally become loose. You could not just remove it with your hands. There were several mechanical fixings into the concrete slab, so it's not like it was just a matter of taking off one screw and the thing moved out of your way. It was firmly fixed into it. You could not lift it up with a machine, you could not lift it up by hand and you could not put a hammer underneath it to lift it. 33. In order to remove the plywood cover, you had to actually get a screw gun, charged with battery, put your Phillips head (or whatever the head of the screw was) into the gun and physically stand there and remove 6-10 screws to release the plywood from the concrete floor. 34. You do need to exert physical force in order to remove the screws on the penetration cover. You would have to have a screw gun, get down on one knee, basically put your hand like you are holding a gun and put your other hand on top of the gun to put pressure down into the screw so that the drill bit bites into the screw. If you do not bite into it, it will not get the pressure to release the screw to turn it in a negative direction to go up. As you are reversing and the screw goes up, you lift your hand up with it and you take it out. 35. The reason we covered the penetration with a piece of plywood was so the renderer would be able to work. In the days or week before the incident, the renderer was actually working on top of the penetration cover with their wheelbarrow and with cement and other material. So it was all secure. 36. I do not remember whether at the time of the incident, the penetration designed for the glass actually had a plywood cover or if it was protected by a handrail. 37. At the time of the incident, in which [Mr Daher] fell through a floor penetration, the works were 75-80% of the way through. It was just getting ready to put the timber floors down. 38. On the day of the incident, we were at the stage of drilling down the battens on top of the concrete slab. This involved putting down timber strips every 450mm and then setting that so that the level was flat before the dressing boards went on top. Because there was a new extended concrete slab, we were using a laser to check the levels compared with the floor of the existing house. 39. I was not on site when [Mr Daher] took the penetration cover off. He took it off before I arrived. [sic!] 40. When I arrived on site, there was only [Mr Daher], [Mr Miller] and myself there. There was no worker with me, no apprentice. No other trades, just [Mr Daher] there to do the flooring. 41. [Mr Daher] had the laser levels set up so that we could go through the levels to work out what we were going to do with the timber floor. Whether we had to raise it, lower it, whatever. 42. I did not notice straight away that the penetration cover had been removed. It was only as we actually started to walk through and we were doing the levels that I noticed that it was off. 43. [Mr Daher's] claim that myself or the client took off the penetration cover is incorrect. 44. I could not have removed the penetration cover because I myself do not work with tools. I have got a significant back injury, so I would not myself actually take it off. 45. I never saw Steve do any work on site and, as far as I am aware, he did not own any tools that could be used to remove the penetration cover. He never picked up a screw, he never nailed a timber in, he never did anything. I recall him saying, 'I paid you guys to do all the work' and he would just ride us if we made a mess or there was a tree he was worried about protecting. 46. When I realised that the floor penetration cover had been removed, I spoke to Anthony about it. He said to me, 'I had to take it off in order to do the batten work through there.' I said, 'No, you didn't have to take it. You need to put it back on.' 47. When we'd gone through all the laser levels, I said, 'Anthony do you have everything that you need to do?' He said, 'Yes, I understand what it is'. And I turned to the client and said, 'Steve any questions? Are you happy with all of that?' And he said, 'Yes that's all going to be good.' And then I turned back to [Mr Daher] and I said to him, 'Make sure you put the protection back on the floor. That's got to be back in there.' I cannot remember exactly if he said, 'Yeah yeah' or 'don't worry about it', but it was literally at that point that he went to pick up his spirit level, which was on the other side of the penetration, and he just went straight into the penetration. 48. I witnessed the incident. I was not far from him when it happened. I could not believe it because we literally were just talking about it. He walked straight over the top of it and I yelled out to him, but by then it was too late. I went to actually put my hand to grab him - just a natural reaction I guess. Then I saw him fall through the plastic down onto the floor below. 49. I called out to him straight away, 'Anthony are you OK?' And he said, 'Yeah, I heard a crack. I think I've broken my ankle.' Maybe there was a bit of shock having seen him go down and then I made my way down the ladder, because there was an actual ladder down in the penetration to get to the basement floor below. So I made my way down there and Steve the client followed me down there too. The plaintiff was sitting on the floor and obviously his ankle was very, very sore because we thought at the time that it'd been fractured. And he said, 'I think I've broken it.' 50. He said, 'I'm sorry.' I said, 'Calm down. As long as you are OK. You're alright. It could have been a lot worse.' I said, 'Are you OK to get up? Do you want me to give you a hand to get up?' He said, 'Just let me sit down for a couple of minutes.' And I said, 'OK.' So I just stayed with him for a few minutes. I think the client went back up, came back down and gave [him] a drink of water. We stayed down there for a couple of minutes. 51. When I was sitting with him talking with him, he said to me, 'I took off the penetration cover.' When I queried him, I said, 'Why did you take it off?' He said, 'I had to take it off to do the work.' I said, 'No, you didn't need to take it off to do the work that was in there.' He said, 'Yeah I know but we just wanted to take the timbers up to it, we didn't want the dust to go into the bottom, so I put down some plastic.' And he said to me, 'Steve told him [sic, me] to put the plastic' that was on there. I said, 'Anthony you can't go blaming a guy who is a homeowner to say he told you to put the plastic. We've got the timbers bolted. You can't just go and take them off and create an issue.' He appeared to be embarrassed and really upset with the whole thing."
2. I note that no objection was taken to [39] of Mr Metlege's statement. Despite that, it is difficult to rely upon that evidence unless otherwise corroborated for reasons that will be obvious.

Mr Miller

1. Mr Miller's witness statement is also dated 5 March 2024. Once again limited at this stage to his description of what he says occurred when Mr Daher fell, the following paragraphs of that statement should be noted: "19. On that day, [Mr Daher] arrived on-site at approximately 7.00am and commenced timber flooring work. 20. I recall having a conversation with [him] shortly after he arrived in which I said to him words to the effect, 'Do you know what you need, what you're doing?' He said, 'Yes. Where's the timber?' I then pointed to timber which was stacked up in the kitchen. 21. [Mr Daher] then said to me words to the effect, 'What levels do you want for the timber floor?' I said to him words to the effect, 'Don't ask me. Paul knows how to do the levels; I thought it was all one level through.' He said, 'OK.' I said, 'Ring Paul, he knows everything.' He then said words to the effect, 'How do you want the trap doors done.' I said to him words to the effect, 'Paul's organised that. He's got some spring-loaded things to pop them open.' 22. I then observed [Mr Daher] remove the penetration cover through which he later fell. When he took it off, I said, 'I don't want all the shit going down into the wine cellar. More to the point, I don't want you to drop timber down there and smash a bottle.' And he said, 'I'll put plastic over the top so that it doesn't all go down.' I said, 'Great, not a problem.' 23. Soon after [Mr Daher] removed the penetration cover, Paul Metlege arrived. Paul and I were standing together in the kitchen and talking about the layout of the kitchen. [Mr Daher] looked up and said, 'Hi Paul, how are you?' At the time he was placing plastic over the penetration from which he had removed the cover. 24. Once [Mr Daher] had finished putting the plastic down, he stood up, looked at Paul and myself in the kitchen and then went to walk across to shake Paul's hand and literally walked straight across the plastic and fell through it. 25. There was a ladder from the living space down to the floor of the wine cellar. [Mr Daher] collected that on the way down and took out some quite expensive wine too. Then Paul and I went down the ladder to him. 26. [Mr Daher] stayed down there for about probably 20-30 minutes. On several occasions while he was down in the wine cellar, [he] said, 'I can't believe I was so stupid. It was totally my fault. I just put the plastic down and then I stupidly walked across it'."

Cross-examination

1. Each witness was cross-examined. However, none of these witnesses resiled in any relevant respect from their respective versions of what occurred. I am comforted in this view having regard to the fact that the written and oral submissions of the parties did not seek to emphasise or suggest the existence of any fatal or troublesome inconsistency between the evidence of any witness in-chief and the status of that evidence following cross-examination. That appears also to be the position taking account of the conversations alleged to have occurred in the cellar following Mr Daher's fall. For the sake of certainty, however, I do not accept that the conversation deposed to by Mr Metlege at [51] occurred. The likelihood that Mr Daher and Mr Metlege would have engaged in a conversation about who may have been responsible for what occurred in the minutes following the fall, when Mr Daher was severely injured and in need of care and attention is to my mind so inherently unlikely that I am unable to accept that it occurred. Having regard to my view of the way in which this case must be decided, however, the issue of who should be believed in that respect is not of any importance.

Conclusions as to these competing versions

1. In summary, the defendants submitted that the evidence established that a timber penetration cover was initially secured in place with several mechanical fixings into the concrete slab, which would have required the use of an electric screw gun to remove several screws or bolts from the concrete floor. They submitted that the evidence established that Mr Daher removed the timber cover and installed the plastic sheet in its place and that Mr Daher then proceeded to walk directly over the penetration while covered only in plastic.
2. Mr Daher's summary was as follows.
3. Mr Daher says Mr Miller started uncovering the penetration while he and Mr Metlege, the guiding mind of Gold & Eagle, were having a conversation in the kitchen. Mr Miller did so by removing the plywood. He asked Mr Daher for some concrete nails. He used Mr Daher's hammer to hammer them in. Mr Miller's explanation for what he did was that he did not want his wine to get dusty.
4. Mr Daher says he then discussed with Mr Metlege what Mr Miller was doing and that Mr Metlege told him he would sort it out "after we had finished our set up and work discussions". According to the defendants, this could not possibly have been what happened because they said the penetration protection was secured to the concrete slab by a method which would have required powered tools and considerable brute strength to remove, not to mention some skill. Since Mr Miller lacked all of these skills and was incapacitated by a prior back injury, it could not have been he who removed the "plugs or Dyna-bolts" to permit the plywood to be lifted.
5. As the evidence emerged it became clear that if the protection had ever been secured by one of the methods suggested by Mr Metlege, it had ceased to be so on or before 12 August 2019, when Mr Miller availed himself of access to the cellar by a ladder protruding through the penetration, for the purposes of taking a promotional photograph which was then posted to Facebook in the name of Gold & Eagle. Axiomatically, in Mr Daher's submission, Mr Miller must have been able to remove whatever protection there was on and/or prior to 12 August in order to take the photograph, which includes the depiction of the ladder protruding above the concrete slab on which the protection would have rested.
6. It follows in Mr Daher's submission that the dismissive response to Mr Daher's allegation of Mr Miller having lifted the penetration protection was not justified: it had been unbolted and there is no evidence of its having been reaffixed.
7. Mr Daher submitted that I would find that the penetration did not have protection which was anchored to the slab and was readily removable by Mr Miller on the day of the accident. Mr Metlege and Mr Daher both thought it was not necessary to remove the protection in order to carry out the construction of the floor. This lends weight to Mr Daher's evidence: he had no reason to remove the protection whereas Mr Miller wanted to stop his wine collection getting dusty from building work above. According to Mr Daher, the probabilities favour his version.
8. Additionally, Mr Daher submitted that Mr Metlege's and Mr Miller's evidence about the method used for effecting protection of the penetration is, at best, unreliable. Mr Metlege should be understood as having given evidence of no more than usual practice but his evidence about that is deprived of value by the fact that whatever and whichever "usual practice" might have been employed initially to secure protection of the penetration, there is no evidence of its having been reinstated at any time after the "plugs or Dyna-bolts" were removed. All that needed to be done was for Mr Miller to lift the plywood and cover it with plastic, as Mr Daher said occurred. As a result the penetration was left without protection. Mr Daher walked across it and fell. Leaving the penetration without effective protection, covered in plastic which obscured the hole was a breach by each defendant.

Experts

1. Having regard to Mr Daher's allegations, and indeed all of the ways in which he pleaded his case, both he and the defendants respectively qualified experts to provide opinions on the question of liability.

Denis Cauduro

1. Mr Cauduro has over 35 years' experience as a project manager, safety advisor and supervisor on building and construction sites, as well as experience undertaking inspections in several hundred workplaces as a safety professional and qualified ergonomist. Mr Cauduro's qualifications and experience were not in issue. His reports were tendered without objection and he was not required for cross-examination on their contents.
2. Mr Cauduro expressed opinions about a multiplicity of matters. It is in my view necessary to refer to only one of them. Mr Cauduro's Executive Summary refers to this matter in context as follows: "[Mr Daher] suffered injuries from a fall on a building site, when an open void was left unprotected and covered with plastic on a suspended floor, causing [him] to lose his balance, and fall a distance of 3.0 metres onto concrete. The defendants removed the protective cover to the void and did not advise [Mr Daher]. The cost of installing timber handrails to the void would have been no more than $50, and would have taken only 5 minutes to install. From my experience within the construction industry if the handrails or a protective cover were installed this would have prevented [Mr Daher's] fall injury."
3. Mr Cauduro elsewhere suggested that the cost may have been as much as $150 but that difference is of no present significance.
4. It will be apparent that there is a dispute among the parties about some of the information upon which Mr Cauduro based his opinion. There is no dispute that handrails could have been installed for the cost he nominated or that such a solution would have prevented or reduced the risk of a fall. His report refers to these as protective handrails or protective barriers to the perimeter of the void, which I understand to be the same thing. Figure 12 on page 17 of Mr Cauduro's report dated 23 March 2021 (Exhibit D1) describes precisely what he was referring to in his reference to handrails or guardrails.
5. It was Mr Cauduro's professional opinion that the adoption of such a precaution would have reduced or eliminated the risk of a fall such as that experienced by Mr Daher. More particularly, Mr Cauduro's opinion, set forth in the Joint Experts' Report (Exhibit H1), was that Gold & Eagle were required to ensure that the plywood cover was not removed by any persons "unless the unprotected void could be made safe with… handrails around the void." He emphasised Gold & Eagle's obligation to identify the hazards "of the changing construction site", a clear reference to the situation where the plywood covering the void had been removed but had not yet been replaced.

Professor David Carmichael

1. Professor Carmichael is the Emeritus Professor of Civil Engineering at the University of NSW. His report dated 13 December 2021 (Exhibit J1) was tendered, perhaps surprisingly, without any objection. He was not required for cross-examination.
2. Professor Carmichael prepared his report upon the basis of instructions about what occurred, as follows: "There were two floor penetrations on the ground floor in the rear living room. They were designed for a staircase leading to the basement below. The penetration (the subject of this claim) was protected with a sheet of structural formwork plywood which was drilled and bolted into the concrete slab. It was secured in place so that it couldn't accidentally become loose. It was unable to be removed by hand or machine; a screw gun would need to be used to unscrew the screws/bolts. The penetration was covered so that the renderers were able to undertake their works. The renderers had been working atop the penetration cover in the days prior to the incident with their wheelbarrow, cement, etc. We are instructed that, shortly prior to the incident, the second defendant witnessed [Mr Daher] removing the cover from the penetration. Neither of the defendants caused the penetration cover to be removed. After [Mr Daher] removed the penetration cover, [Mr Miller] told [Mr Daher] that he did not want anything falling through to the cellar below, following which, [Mr Daher] said he would lay down a plastic sheet over the penetration. While [Mr Daher] was placing the plastic sheet over the penetration cover, the site supervisor of the first defendant arrived. Once [Mr Daher] had completed putting the plastic down, he stood up, looked at the second defendant and site supervisor of the first defendant (who were situated in a nearby kitchen area) and proceeded to walk towards them, walking straight across the plastic, thereby falling through. There was no need for [Mr Daher] to remove the penetration cover to undertake his work. He could have worked around the penetration cover. The other penetration could be used if access was required to the basement below. The appx size of the penetration was 70-80 cm wide and 1-1.2 metres long. At the time of the incident, the works were appx 75%-80% complete and they were getting ready to put the timber floors down."
3. These instructions were obviously at odds with the version of events upon which Mr Daher relies.
4. At [38] of his report, Professor Carmichael says this: "[38] With Gold & Eagle having made the penetration safe and the incident being entirely of [Mr Daher's] making, then the comments by Cauduro on the following matters, among others, are not relevant: ● Installing handrails…".
5. Professor Carmichael's 'SUMMARY' offered the following insights: "[78] In my opinion the secure penetration cover provided by Gold & Eagle is a more than satisfactory risk management response to the recognition that an open penetration is a hazard. [79] My opinion…is that [Mr Daher's] incident would be foreseeable to [him] and it would be obvious to most people that [his] choice of actions (namely, removing the penetration cover) leads to risk. [80] In my opinion, Gold & Eagle has addressed the risks associated with the penetration. Gold & Eagle has made the penetration safe. The penetration was made unsafe by [Mr Daher's] own actions, and the incident is entirely of [his] making. [sic] [81] It is my view that the work health and safety practices related to the penetration by Gold & Eagle have anticipated safety risks and have addressed these, and put controls in place for these. Gold & Eagle has addressed its health and safety obligations with respect to the penetration. I cannot see fault in Gold & Eagle's health and safety practices with respect to this incident."
6. To the extent that Professor Carmichael has expressed inadmissible views on ultimate issues in these proceedings, I have put them to one side.

Discussion - experts

1. Despite the raging controversy about who removed the plywood cover that had been bolted over the penetration, which I accept was a safe and secure method of reducing if not eliminating the risk of a fall for as long as it remained in place, neither the defendants' analysis nor Professor Carmichael's opinion comes to terms with the fact that the cover was capable of being removed, that it was removed in fact and that the penetration came in its absence to be covered only by a plastic sheet. Whomsoever was the party who effected that removal, the choices being Mr Daher or Mr Miller, the evidence establishes that its removal was physically possible and that it occurred. Mr Cauduro's proposition, which I accept, is that the very possibility that the plywood cover could be removed, enhanced by the evidence that establishes that very fact, meant that for the duration of its removal, the penetration was rendered unsafe.
2. The respective liability of Gold & Eagle and/or Mr Miller in tort for damages to Mr Daher can only be understood by reference to the alleged breaches of duty that Mr Daher maintains that they both committed. One of Mr Daher's pleaded particulars of negligence was that the penetration should have been guarded or protected by handrails in the manner suggested by Mr Cauduro. Professor Carmichael somewhat blithely characterises that suggestion as irrelevant. He does not otherwise address what is a simple and cheap solution, other than by a somewhat unfortunate and rather obdurate adherence to the conclusion that Mr Daher must have been at fault for removing the plywood cover.
3. Both experts accept the clearly uncontroversial conclusion that an open penetration with no barrier to a fall represented an unsafe situation on a worksite. Gold & Eagle had a duty to institute and maintain a safe system of work and to maintain the premises at which Mr Daher was required to work in a safe and suitable condition. I reject Professor Carmichael's evidence that handrails or guardrails in the configuration identified by Mr Cauduro was irrelevant. That dismissive opinion was clearly based upon his attribution of fault to Mr Daher for removing the plywood cover. Professor Carmichael was unable, and failed, to address the possibility that the penetration created a danger from the moment the plywood cover was removed, no matter who may be found to have done so. Professor Carmichael did not ever come to terms with Mr Daher's pleaded allegation that the defendants had been negligent by failing to fence or barricade the penetration to prevent persons on site inadvertently walking upon the plastic sheeting.
4. It will be apparent that it is my view that the question of whether the defendants were, or one of them was, negligent or in breach of a duty owed to Mr Daher, is not circumscribed by or coextensive with resolution of the question of who removed the plywood cover from the penetration. That factual issue is obviously relevant to the question of whether Mr Daher negligently contributed to his own loss and damage. Contributory negligence is dealt with later in these reasons.

Who removed the plywood cover?

1. Mr Daher's evidence was that Mr Miller removed the plywood that covered the penetration and replaced it with plastic. By way of contrast, Mr Miller says he saw Mr Daher do so. Both versions are irreconcilable. In my opinion, Mr Daher removed it. My reasons, in no particular order of significance, for coming to that conclusion are as follows.
2. First, I accept completely Mr Miller's explanation, referred to below, of why it was not he who removed the plywood cover. If it be accepted, as I accept, that Mr Miller was concerned to ensure that dust and debris should not fall onto his treasured wine collection, it would not have been necessary for him to do anything, or to ask Mr Daher to do anything, to remove it. Even on Mr Daher's case, the plywood was in place when he arrived on site. Mr Miller could not have been interested in removing it only to replace it with plastic if it operated already as protection for his wine.
3. Secondly, Mr Daher's evidence was that he did not consider the plywood cover had to be removed before he could carry out his work installing the battens for the floating floor on the slab. I believe that evidence: Mr Daher was an experienced carpenter and would have been well aware of the requirements of the job he was there to perform. However, the fact that Mr Daher had no need to remove the cover for his own purposes does not mean that he did not remove it for some other reason. In my opinion, the reason why he did so is that he was asked to remove the cover by Mr Miller in order that Mr Miller could continue to have access to the cellar and his wine, as he had in the past.
4. Thirdly, and in a related sense, that finding aligns with the installation of the protective plastic sheeting to seal the penetration. Mr Daher installed the plastic in order to assuage Mr Miller's concerns about dust or debris entering the cellar for as long as the penetration was open. I consider that it is likely to a point approaching certainty that the installation of the plastic cover over the newly exposed penetration was performed by Mr Daher at Mr Miller's request. That request was generated by Mr Miller's concern that the removal of the plywood cover would expose his wine in the cellar to possible interference by falling dust and debris. The installation of the plastic was a response to the removal of the plywood cover, not a reason for the cover to be removed.
5. Fourthly, I cannot accept, even taking account of Mr Miller's "hands-on" approach to his premises and his dislike for the disruptive and intrusive nature of work being performed there, that he would have taken it upon himself to affix plastic sheeting over the penetration in the first place or more particularly that he would have chosen to do so using nails hammered or somehow otherwise physically forced into a reinforced concrete slab in the second place. Such a method would in my experience have been a most curious way to affix plastic sheeting to a concrete slab as well as cumbersome, difficult and probably ineffective. Mr Miller did not impress me as a person who was either well acquainted with practical building skills or one who possessed any inclination to display them.
6. Fifthly, Mr Miller's at times revelatory and exceedingly frank evidence about his personal circumstances included an emphatic disavowal of any ability or capacity, by reason of a prior injury, physically to perform the work involved in removing the plywood cover. I was left with a distinct impression that Mr Miller did not for any purpose on this morning get down on his hands and knees (actually or metaphorically) either to remove the plywood cover or replace it with plastic. Some of Mr Miller's evidence, of the type to which I have adverted, was as follows: "Q. You see I want to suggest to you that the sequence of events was that Mr Daher was the one in the kitchen discussing the job with Mr Metlege before his accident. Do you agree with that? A. No. No, definitely not. Q. And that you began to remove wood from the penetration? A. That's - the only person that knew about the kitchen was me and Paul, and I didn't lift any wood because I can't. Q. Okay, well, you included in that the only people who knew about the kitchen were me and Paul. A. Mm. Q. You may have misunderstood my question. A. Mm. Q. What I put to you was that Paul and Mr Metlege and Mr Daher were in the kitchen, discussing the job. Not the kitchen-- A. No, they-- Q. --I'm not putting that to you. A. No, they were not. Definitely not. Q. And you said: 'I will prepare this for you, as I want you to get started with the work and not waste time.' A. No. I definitely didn't have it. Q. Well, you would've been concerned about wasting time, wouldn't you? A. No. Set price job. Didn't - like, I wanted it done, but I - it's not my job. Q. Well, you wanted it done as quickly as possible, didn't you? A. Yes. Q. And then, I suggest to you that, having removed the wood, you put some plastic over the hole and taped the edges down? A. It's physically impossible for me to - to have done that. Q. Physically impossible? A. Yep. Q. Did you ask Mr Daher for some concrete nails? A. I don't even know what they are. Q. You said that as if you've heard of them before. A. Well, I have now that there's been discussions about them. Q. When were the discussions about them? A. I'm now building a - well, I'm about to build a house at Wollombi, and I've built a shed at Wollombi, so now I know what those things are. But to be honest, I'm a bisexual guy with a gay husband. I don't - didn't know anything about this stuff."
7. Despite being cross-examined about these answers, and challenged on the veracity of his limiting injuries, I accept Mr Miller's account of what occurred was truthful.
8. Sixthly, Mr Daher was in my opinion unable to explain what he asserts Mr Miller did to remove the plywood cover despite being there at the time he says it took place. His evidence about this when cross-examined was as follows: "Q. You and Mr Metlege stood there and watched whilst Mr Miller removed the cover. Is that right? A. Well, we were in discussion of what we were going to be doing. But we did - we did see him remove it, yes. Q. Well, you've said Paul and I were in the kitchen discussing the job when the owner who was in the living room started removing the wood. Did you see him do that? A. Yes. Q. Yes. So-- A. So I just said that. Yes. Q. --you and Paul are there, standing right near the penetration, aren't you? A. Standing in the kitchen. Q. Well, how far away from the penetration was that? A. Couple - maybe - I - I - I don't know exactly. I can't remember exactly. But three, four metres at least. Q. But no doubt, you could see what was going on? A. Yeah. Yeah. Q. Because you say Mr Miller was removing the wood? A. Correct. Q. So you and Paul are standing there. The head contractor and the carpenter, watching the owner do what would otherwise be one of the - and I use a generic term - one of the builder's jobs. Is that right? A. Yeah. Q. What tools did he use to remove the wood, Mr Daher? A. I didn't see him use any tools. Q. I'm sorry? A. I didn't see him use tools to remove it. Q. He didn't use tools? A. I didn't see him use the tools. Q. Well, you were standing two or three or four metres away? A. Yeah. In deep discussion with my boss. I didn't-- Q. But you saw him doing it, Mr Daher. You've already said that. A. Yes. I've seen him removing it. But it's still whilst in our conversation. Q. How did he remove it? A. I don't - I don't - I don't know how - what he - what tools he used to remove it. Q. How did he remove it? Did he rip it up or? A. I don't - I didn't - I don't know. Q. Well, tell us what you did see because you saw him remove it. You've told us that. What did you see? A. I'd just seen him remove it. Just picking it up and taking it off. Q. So not taking any screws out of it? A. No. I didn't see anything like that. Q. So to your understanding was the wood just sitting there, and he was able to just lift it up? A. I didn't see him remove any screw. Whether there was something small, and he removed it, and I didn't notice, I'm not sure. But I didn't see him remove anything - any screws. Q. Was he making any noise doing it? A. Not really, no. Q. No noise? A. I don't recall. No. Q. I see. A. When you say noise, is it like - what do you mean by noise? Just you know? Q. Well, did he make any noise in removing it? Was there any noise coming from that area? A screwdriver-- A. No. Q. --or a hammer-- A. No. Q. --or I don't know, anything? A. I didn't hear that. No. Q. Did you hear anything? A. No, not really. Q. Well, when you say not really, what did you hear? A. What do you mean by what did you hear? I just heard just noise. Like, as in, could be, like, I don't know. I just heard noise. I don't recall exactly the noise in my head. It's a bit - it's a weird question to ask me. But yeah. Q. You say that, after he removed it, he put plastic over the hole? A. Correct. Q. Just as a matter of interest, when he was doing this, when you say Mr Miller was removing this penetration, did you say anything to Mr Metlege about it? A. First Paul said, what are you doing, and he told me he wants to do it. And then after that, I spoke to Paul in Arabic when he was putting the plastic down. And I said to him, you know, you shouldn't be doing - pretty much - pretty much said he shouldn't be doing that. And that, you know, he should, like, stop really."
9. It seems to me to be quite extraordinary that Mr Daher cannot recall or describe in any meaningful way the manner in which he says Mr Miller removed the plywood cover. I do not accept that Mr Daher stood by, speaking to Mr Metlege no more than four metres away, passively watching Mr Miller do so. Mr Metlege does not support this version in any event. Mr Daher's "description" of what he saw is to my mind no description at all. It is no better than a bare assertion or allegation that something happened but it is entirely devoid of any content. I do not believe it.
10. Seventhly, although there was no technical evidence touching the matter, it would strike me as extremely odd that anyone, particularly anyone with Mr Miller's limited technical expertise, would choose or attempt to secure plastic sheeting over a penetration in a concrete slab using nails or a form of equivalent fixature rather than adhesive tape or something similar. Such a theme was explored with Mr Daher in cross-examination as follows: "Q. Now, just going back to it, 58, 'After the owner removed the plywood he was putting plastic over the hole, he was using tape on the edges to hold it down'. That's all - you say that's all true? A. Yeah. Q. 'He then asked me for some concrete nails, but it was in my van, so I went into my van to get him some concrete nails'. A. Correct. Q. What's a concrete nail? Is it made out of concrete or does it go into concrete? A. No. Yeah, it's a nail that goes through concrete. Q. But the plastic that you've just identified, you've said that the nails went into the four corners of the plastic, is that right? A. Pardon? Q. Where did the nails go, the nails that he asked you to get? A. I don't know, he put them in. Q. You don't know whereabouts-- A. I believe it was the corners but yeah. Q. I'm sorry? A. I gave him the nails, and he put the nails in. Q. You don't know where he put the nails? A. I can't - I don't remember exactly, but yeah."
11. I am completely unable to accept that this evidence is true. I do not accept that a person with Mr Daher's experience in the building and construction industry would have co-operated with Mr Miller in an obviously futile attempt to secure plastic sheeting to a concrete slab using nails, or that he would have gone to his truck without question to retrieve the nails for such a ridiculous purpose.
12. In the events that occurred, Mr Miller in fact described Mr Daher's installation of the plastic using precisely such a method, as this evidence reveals: "Q. The penetration cover was off on your version, if you look at paragraph 23, when Mr Metlege arrived. A. Yes. The penetration was off when Paul arrived. Yes. Definitely. Q. The two of you stood there for six or seven minutes? A. Mm-hmm. Q. Facing the penetration, discussing the kitchen? A. Yes. Yes. Q. From at least your perspective, it was easy to see that the penetration was uncovered at that time? A. Yes, it was. Q. It was easy to see, I take it, that Mr Daher was placing plastic over it? A. He was on his knees around it, putting plastic over it. Yes. Q. With nothing under the plastic but air? A. That's correct. Q. Did you see how he anchored the plastic? A. Partly. Like, there was this wide grey tape. So the plastic was put out, put on one side. Taped it. I looked away for a while, noticed it taped all around it. And I didn't really take much notice after that."
13. I am satisfied that Mr Daher removed the plywood cover and replaced it with plastic sheeting. It necessarily follows that I do not accept Mr Daher's evidence about his observations of Mr Miller doing so.

Liability of Gold & Eagle and Mr Miller

1. One of the defendants' responses to the proposition that the penetration should have been protected by a balustrade or handrails was to say that there was insufficient time to do so between when the plywood cover was removed and the plastic installed in its place before Mr Daher fell. I reject that suggestion. That is for the reason that it misconceives the obligation in question. The defendants' position was adverted to by Mr Turnbull in his cross-examination of Mr Daher in the following terms: "Q. Did you at any time seek to put a fence around or some sort of barricade around the penetration? A. Me? Q. Yes. A. No. I was in conversation with Paul. Q. Well, would you agree that, in fact, in the amount of time that was available, there wasn't time to put one around? A. What do you mean by that? Sorry. Q. Well, the time between when the penetration was removed and when you fell-- A. Yes. Q. --was only about half an hour, wasn't it? A. Approximately. Q. Yes. So it didn't give you time to put, I don't know, a fence or a barricade around? A. Well, it - I was speaking to my boss. Then he told me to leave it. He - he told me to leave it, and we'll sort it out after our conversation. That's what he said."
2. The cross-examiner's questions proceed upon what I consider to be the false assumption or misapprehension that the barricade was only required to be constructed once the plywood cover had been removed. However, as will be obvious, the plywood cover was installed as a safety precaution and operated as such only for as long as it remained in place. If there were any reason to remove the cover, as for example there must have been in order to gain access to the cellar in due course to construct the stairs, or for any other purpose, the danger created by the open penetration revived. The obligation to put a barricade or fence around the penetration was necessary for as long as there was a risk that the plywood may be removed. That obligation did not first, or only, arise on the occasion when the cover was removed on the day in question.
3. What seems to me to be just as significant is that Mr Metlege was onsite during the period after the plywood cover had been removed from the penetration and the plastic sheeting installed in its place. That is clear from the following evidence: "Q. So when you were walking through the site, you noticed the penetration cover was missing? A. Yes. Q. You continued to walk through the site notwithstanding that you noticed the penetration cover was missing? A. No. So I think I just said that at the end of our meeting, that I'd noticed that it was missing. And I didn't continue walking through the site at that stage. No. Q. So what were you walking through the site to do? A. Set out levels for timber battens so that the floorboards could be installed. Q. Did you abandon doing that? A. No. We did do that task. Q. So if you noticed the penetration was missing, as you started to walk through the site to do that, there must have been some time between you noticing the penetration was missing and the end of your meeting? A. No. Q. None? A. No. What I'm trying to say is that as we've walked through the site - because I didn't see. It was covered with plastic. Like, a grey plastic, which I hadn't observed that the - the grey plastic was there. And was kind of the same colour as what the concrete was. We checked all the levels. Put the laser out. Did all the stuff that we needed to do. And after we checked all the levels, and I was about to leave, it was at around that stage that I noticed the penetration. Q. That's not what paragraph 42 says, is it? A. I don't know how to answer. I'm probably giving more detail. But I didn't notice it straight away. Q. I'm not suggesting you did. But I'm suggesting that before you started to walk through - sorry, I withdraw that. That as you started to walk through the site, for the purpose you've just identified, you noticed the penetration cover was missing, didn't you? A. As I was starting to walk through? Q. Yes. A. No. I-- Q. Isn't that what paragraph 42 says? A. No. Can I clarify? HIS HONOUR Q. Well, just read the second sentence of 42. A. 'It was only as we actually started to walk through, and we were doing the levels, that I noticed that it was off.' Q. Mr Sheldon is suggesting to you that that means you noticed that the penetration cover was missing as you started to walk through. A. Right. Q. Do you agree? A. Yes. SHELDON Q. So there was some time between recognising it had been removed and the end of your meeting with Mr Daher, wasn't there? A. Yes. Q. How long? A. Very short. Q. How long? A. So, as I recall, I've asked the question why the penetration wasn't there. Anthony gave his answer. And I said it didn't need to come off. And then shortly, very shortly after that, we've - I've given him instructions to - that it did need to be protected and protect it. And then I've asked everything is okay, we've sorted out the levels. And then I was going. And then that's when it happened. Q. So tell me, what was it that drew your attention to the fact that the cover was missing? A. We were standing probably about five or so metres away from where the door threshold was. And I was looking back that way. And then just somehow I saw the plastic was actually dipping inside the penetration. Q. The dipping in it told you there was nothing underneath it? A. That's right." [Emphasis added]
4. Mr Metlege was present at the premises with knowledge that the plastic sheeting was all that stood between Mr Daher and the basement below. It is entirely irrelevant, as Mr Metlege contends, that he was not present on site when the cover was removed. Mr Metlege's evidence makes this abundantly clear: he noticed that the penetration cover was missing before Mr Daher fell through it. For as long as that situation existed, the penetration created a danger. As Mr Metlege's answer also makes plain, he must have recognised the existence of the danger that was created because, as he said, he gave instructions to Mr Daher that the penetration needed to be protected and to protect it. Mr Metlege's evidence also supports Mr Daher's evidence that the plastic effectively disguised the penetration. Mr Daher said this was because there was plastic all over the site; Mr Metlege said the plastic was the same colour as the slab.
5. Gold & Eagle breached its duty of care to Mr Daher and was negligent in failing to take reasonable care to ensure that it took proper or adequate precautions to guard against the risk that he might fall, in the course of his work on a building site of which Gold & Eagle had the care, control and management, through the unguarded penetration in the slab. The simple and cheap method of doing so was to erect handrails or guardrails around the penetration in accordance with the description given by Mr Cauduro.
6. Mr Miller did not similarly breach any duty of obligation that he owed to Mr Daher. Although he was the owner and occupier of the premises, he was not relevantly in charge or control of so much of the premises as constituted the site of the works that he had retained Gold & Eagle to perform. The suspended slab and the penetration through which Mr Daher fell were under the care and responsibility of Gold & Eagle as the head contractor. Mr Miller did not have any obligation to cover the penetration and was entitled to rely upon Gold & Eagle to do so.
7. Mr Daher is entitled to a judgment against Gold & Eagle. There should be an order dismissing the proceedings against Mr Miller.

Mr Daher's submissions

1. On all versions of how the cover came to be removed, Mr Daher was aware that it had been removed. Mr Daher submits, however, that by reason of the work directions he was receiving at the time, diverting his attention, his focus on his work and the absence of a visual cue of the penetration due to the placement of the plastic, his step into the penetration was momentary inadvertence falling short of contributory negligence.
2. Mr Daher submitted that to the extent that contributory negligence is established, it should be restricted to his failure to remember and heed the presence of the penetration. Any contributory negligence said to be associated with removing the penetration cover was not causative of loss given Mr Metlege's opportunity and Gold & Eagle's legal obligation to have removed the danger and risk of injury arising from its removal.
3. If on the contrary I were to find that there was contributory negligence, Mr Daher submitted that the just and equitable apportionment would be modest, not exceeding 20%.

The defendants' submissions

1. The defendants submitted that there should be a substantial reduction for contributory negligence given the circumstances of how even Mr Daher says he came to fall.
2. Mr Daher was employed by his own company. There is a distinction between determining the liability of the company and determining contributory negligence in cases involving a company of which an injured plaintiff is a director and/or participates in decisions concerning workplace safety. The decisions of the High Court in Nicol v Allyacht Spars Pty Ltd (1987) 163 CLR 611; [1987] HCA 68, Andar Transport Pty Ltd v Brambles Ltd (2004) 217 CLR 424; [2004] HCA 28 at [39] - [40], and Hallmark Construction Pty Ltd v Harford [2020] NSWCA 41) support this view. However, these authorities do not generally preclude the court from finding that the facts and circumstances establishing the liability of the company to the employee also establish contributory negligence by the employee.
3. Further, although it may be necessary to engage in a somewhat artificial exercise of looking at conduct of the same person in two capacities, that does not mean that the court must ignore the practical reality that Mr Daher has the same knowledge in both cases. Nor should the court treat Mr Daher's state of mind as a worker as if some part of that knowledge is to be ignored or discounted for the purpose of determining if there has been contributory negligence. His knowledge of the lack of hard covering over the penetration and his failure to ensure his own safety by making sure he did not step on the penetration speaks, if the primary liability does not rest on him, of a very significant level of contributory negligence.
4. Nor is attention or inadvertence a panacea negating contributory negligence. As Kitto, Menzies and Owen JJ observed in Sungravure Pty Limited v Meani (1964) 110 CLR 24 at 33; [1964] HCA 16: "An inadvertent or thoughtless act may also amount to a negligent act for the very reason that it is done without thought for or consideration of the consequences that may follow from the doing of it."
5. It is uncontroversial that a duty of care may require the taking of precautions against the risk of injury in the event of inadvertence, inattention or misjudgment by a worker. However, the reasoning in Sungravure is to the effect that inadvertence, inattention or misjudgment can constitute contributory negligence.
6. Section 5R of the Civil Liability Act 2002 now reinforces the common law principle that the standard of care for contributory negligence is the same as for primary negligence, being that of the reasonable person in the circumstances. Thus, whilst the existence a duty of care involves identification of the reasonable precautions that ought to be taken, it does not follow that inadvertence, inattention or misjudgment are sufficient of themselves to negate contributory negligence in every case, including those involving workplace injuries.
7. The defendants submitted that, even on his version of what occurred, Mr Daher's inadvertence or inattention in the circumstances of this case was very substantial. Whether he removed the cover or watched Mr Miller remove it, he was obviously aware that there was no cover over the penetration. It was only a short time later, according to him, that he stepped onto the plastic and fell through the hole. Section 5R(2)(b) of the Civil Liability Act makes it clear the matter of contributory negligence is to be determined on the basis of what Mr Daher knew or ought to have known at the time of his fall.
8. In making a determination as to whether or not Mr Daher suffered damage as a result partly of his own failure to take reasonable care, the causal relationship between that failure and the damage suffered is to be determined by reference to the common law principles enunciated in March v E and MH Stramare Pty Limited (1991) 171 CLR 506; [1991] HCA 12 and not by reference to the principles in section 5D of the Civil Liability Act (see Verryt v Shoupp [2015] NSWCA 128 at [24]-[28] per Meagher JA).
9. In Council of the City of Greater Taree v Wells [2010] NSWCA 147, Basten JA at [107] reiterated that the assessment of contributory negligence was to be "to such extent as the Court thinks just and equitable having regard to the claimant's share in the responsibility for the damage". Earlier in the same case at [105], his Honour held that the evident purpose of s 5R was to give legislative emphasis to the principle that the standard of care in determining both negligence and contributory negligence is the same.
10. In the defendants' submission, contributory negligence should be assessed at 80%.

Contributory negligence - conclusions

1. The following provisions of the Civil Liability Act apply to this issue: 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. 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.
2. Mr Daher fell through a penetration covered only by a plastic sheet that he knew was unsafe to walk on. If that proposition was ever in doubt, the doubt was resolved following this evidence: "Q. From the moment the plastic went down, Mr Daher, you knew that the cover was only - the hole, the penetration, was only covered with plastic. Didn't you? A. Well, you could say that. HIS HONOUR Q. Sorry - what was your answer? A. I said, 'You could say that'. Like, I knew that - yeah. Q. When you say, 'You could say that', do you mean, 'Yes'? A. Yeah. Yes. Q. Yes. That's all right. A. Yep. TURNBULL Q. And you knew, therefore, that it was dangerous for you to step onto, because you would fall through. A. Yes. Q. And when you stepped onto the plastic, that was not - only a short time after the plastic had been put down, hadn't it? Less than half an hour. A. Approximately, yeah."
3. Howsoever the defendants have chosen to particularise the failings on Mr Daher's part that allegedly contributed to his fall, it is clear in my opinion that he failed to take proper care for his own safety when he stepped onto the unsupported plastic sheet that he had not long before placed over the unguarded penetration. Whether this is characterised as a failure to keep a proper lookout or a failure to avoid the penetration, it all equates to Mr Daher having contributed by his own carelessness to the damage that he sustained.
4. Mr Metlege was an experienced builder. He was aware that the penetration was a danger and that Mr Daher was, and would be, working near it when it was completely unguarded. Somewhat remarkably, Mr Metlege does not ever appear in my view to have become sufficiently concerned to ensure that its dangerous condition, which he concedes he instructed Mr Daher to remedy, should have been attended to as a matter of urgency. By the same token, Mr Daher could not have had any understanding other than that the unguarded penetration was dangerous. The battleground upon which much of this case has been fought, concerned as it was with who removed the plywood cover and why, pales in significance when confronted with the stark reality that before Mr Daher fell, both he and Mr Metlege were cognisant of the relevant risk.
5. In my view, it is instructive to analyse and understand precisely what it was that Mr Daher did and what he did not do. Mr Daher did not consciously take the risk that if he stepped onto an unsupported plastic sheet it would be safe to do so or that he nevertheless hoped that it was. He did not consciously make a foolhardy decision to do something that a moment's thought would and should have informed him was risky and dangerous. Mr Daher did not weigh up alternatives and choose the dangerous course when any reasonable person in his position would have appreciated the error and avoided it. Mr Daher did not dive into possibly shallow water without checking the depth beforehand.
6. On the contrary, Mr Daher could not in my view ever be found to have intended to step onto the unsupported plastic under any circumstances. His failure was not that he was foolhardy and so should be treated by the law accordingly. His failure was that for some reason he did not advert to what would have been obvious if he had been paying attention to his surroundings. Mr Daher did not misjudge a risk that he assessed. He was momentarily inattentive to the risk when he stepped onto plastic instead of the surrounding slab.
7. There is no credible evidence that when he did so, Mr Daher was distracted by the nature of his work or burdened by some mindless and reoccurring task or that he suffered from the effects of work related fatigue. Mr Daher simply failed to take reasonable care for his own safety in circumstances where, armed with his knowledge of the risk from the events of that morning, he should have walked around the danger that he knew existed. This is not a case where Mr Daher's inadvertence or inattention should operate to shield him from a finding of contributory negligence.
8. I consider that Mr Daher's contribution to what occurred by reason of his own negligence should be assessed as 30%.

Section 5B

1. Sections 5B and 5D are in these terms: 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. 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 risk that Mr Daher might fall into an unprotected penetration was entirely foreseeable. Gold & Eagle took some precautions to reduce or eliminate it. The risk could not be described as not insignificant.
3. Mr Daher's accident was directly caused by the unguarded state of the penetration at the time that he fell. Specifically, his injuries and disabilities were caused by Gold & Eagle's failure to install and maintain a physical barrier that reduced or eliminated the risk that someone might fall into the penetration when or at any time it was open or, which is the same thing, when it was not otherwise covered by the plywood sheeting that Mr Metlege put in place.

Sections 5F, 5G and 5H

1. Section 5F, 5G and 5H are in these terms: 5F Meaning of 'obvious risk' (1) For the purposes of this Division, an 'obvious risk' to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person. (2) Obvious risks include risks that are patent or a matter of common knowledge. (3) A risk of something occurring can be an obvious risk even though it has a low probability of occurring. (4) A risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable. 5G Injured persons presumed to be aware of obvious risks (1) In proceedings relating to liability for negligence, a person who suffers harm is presumed to have been aware of the risk of harm if it was an obvious risk, unless the person proves on the balance of probabilities that he or she was not aware of the risk. (2) For the purposes of this section, a person is aware of a risk if the person is aware of the type or kind of risk, even if the person is not aware of the precise nature, extent or manner of occurrence of the risk. 5H No proactive duty to warn of obvious risk (1) A person ('the defendant') does not owe a duty of care to another person ('the plaintiff') to warn of an obvious risk to the plaintiff. (2) This section does not apply if-- (a) the plaintiff has requested advice or information about the risk from the defendant, or (b) the defendant is required by a written law to warn the plaintiff of the risk, or (c) the defendant is a professional and the risk is a risk of the death of or personal injury to the plaintiff from the provision of a professional service by the defendant. (3) Subsection (2) does not give rise to a presumption of a duty to warn of a risk in the circumstances referred to in that subsection.
2. These provisions have no present application. The issue of whether or not a risk is an obvious risk is one that arises in circumstances where the injured person may be understood or assumed to have taken the chance that the risk would not materialise but engaged in or performed the conduct or activity in which the risk materialised notwithstanding. Diving into water that was clearly shallow would be an example.
3. In the present case, it can be accepted that the risk of stepping into a penetration in a concrete slab over a three metre void might cause injury was something of which Mr Daher should have been clearly aware because it was obvious as a matter of common knowledge. However, his fall through such a hole was not the result of him ignoring or taking such an obvious risk: Mr Daher did not step into the hole, mindful of the risk, hoping that he would not be injured. In other words, it could not be suggested in this case that Mr Daher walked onto the plastic knowing that he was doing so, and I have found otherwise. The notion that the putative liability for an obvious risk should not be imposed upon a defendant necessarily imports the requirement that the injured person was aware of, or chose to pay no heed to, the risk at the time of the event giving rise to the damage, thereby relieving the defendant of responsibility. To resort to the vernacular, liability for the risk eventuating, causing loss, should not pass to or be imposed upon the defendant if the injured plaintiff, doing what was done, should relevantly have known better at the time.

Section 5I

1. Section 5I is in these terms: 5I No liability for materialisation of inherent risk (1) A person is not liable in negligence for harm suffered by another person as a result of the materialisation of an inherent risk. (2) An 'inherent risk' is a risk of something occurring that cannot be avoided by the exercise of reasonable care and skill. (3) This section does not operate to exclude liability in connection with a duty to warn of a risk.
2. The risk that someone might step into an unguarded penetration in a suspended concrete slab and be injured by falling three metres to the floor below was not an inherent risk as defined. Not only was the risk one that could have been avoided by the exercise of reasonable care, but Mr Metlege put in place a system of covering the penetration with a sheet of plywood secured by bolts in order to eliminate the very risk in question. The risk that eventuated here could have been avoided by the reasonable course of installing and maintaining a handrail or similar barricade for very little cost.

Damages

1. Mr Daher sustained a significant fracture of his left medial malleolus. He required surgery and the insertion of screws. Postoperatively he was in a cast for four weeks and then a boot for a further four weeks. He required extensive physiotherapy and a period of inconvenient convalescence. He experienced post-operative back discomfort once he began to mobilise.
2. Mr Daher's fracture initially failed to unite. Further surgery was performed but by that time union had occurred. The hardware was removed.
3. Mr Daher complained to Dr Giblin in September 2020 that his back continued to affect him with bending, lifting and standing or sitting for long periods. His left foot affects him with walking distances, climbing stairs, squatting, kneeling and walking on uneven ground. He notices swelling if his ankle is used for any period of time.
4. By the time Mr Daher saw Dr Giblin in June 2021, there had been no major change in his condition, except that his back pain had improved. He continued to experience pain and problems with his left foot. He had by then resumed light work for three days a week, four hours per day. He continued to have problems walking more than about 15 minutes and standing for long periods. He avoids stairs. Dr Giblin considered that he remained unfit for work that involved repetitive bending, heavy lifting, prolonged standing or walking on uneven surfaces.
5. Dr Giblin considered that Mr Daher was likely to get some minor arthritic changes in his ankle joint which will more than likely not require any ongoing treatment. His pronated foot however will lead to degenerative change of the tarsal and mid tarsal joints with associated pain. He will require permanent orthotics and there was then thought by Dr Giblin to be an outside possibility that he may require a surgical fusion of his forefoot at an estimated cost of $25,000. By May 2023, Dr Giblin was of the opinion that surgical intervention was not anticipated.
6. Mr Daher was also assessed by Dr Low in November 2021 and May 2023. His assessment was similar to that of Dr Giblin. Having regard to Mr Daher's reported physical restrictions, Dr Low thought that Mr Daher was essentially confined to sedentary-based work and that in light of his time away from physical work (as at May 2023) he considered that any prospects that Mr Daher may then have had of returning to physical work were poor. Dr Low said that Mr Daher "will remain permanently precluded from returning to physically-demanding work". Dr Low had an expectation of ongoing symptoms and disability in the foreseeable future.
7. Mr Daher was medically assessed on behalf of the defendants by Associate Professor Jones and Associate Professor Shatwell. The latter raised some doubt about the need for Dr Suthersan's third operative procedure. All doctors apart from Professor Shatwell accepted that Mr Daher was unfit by reason of his injuries and disabilities and associated surgeries to return to his pre-injury heavy-duty work as a carpenter.
8. Professor Jones considered that Mr Daher had excellent prospects of vocational rehabilitation in line with his goals of working in the construction industry within his physical capacity although he accepted that Mr Daher would be limited with labouring, especially involving the need to walk around construction sites with uneven surfaces. Subject to those limitations, Mr Daher would have a normal vocational expectancy.
9. Dr Low and Associate Professor Jones took part in an Expert Conclave on 27 August 2024. Their Joint Report (Exhibit H3) contained the following opinions: "The experts agree that [Mr Daher] had a workplace injury on 20 August 2019 and he sustained fractures around the left ankle. The experts agree that Mr Daher required time off work related to the work injury. The experts agree that Mr Daher will remain unable to return to his pre-injury work, as a carpenter/all-rounder work in the construction industry. The experts agree in terms of his physical restrictions as set out by Dr Low in his response to question 3 of his report dated 2 May 2023. However disagree in terms of how that translates into future employability. The experts agree that avoidance of walking on uneven ground does not mean total preclusion but rather minimisation. A/P Jones clarified that working at heights does not include working in a well-controlled safe environment. The experts agree that Mr Daher retains physical capacity to perform most light home chores. Dr Low maintains [Mr Daher] would have difficulty performing gardening activities and heavy household tasks such as cleaning bathroom surfaces and moving heavy furniture. The experts agree that Mr Daher experienced pain to varying degrees. However, the experts disagree in terms of whether this would be considered significant. Dr Low maintains [Mr Daher's] pain is of a significant nature and A/P Jones maintains that his pain is of varying degree, but not significant. Dr Low maintains that Mr Daher's prospects for return to work in consideration of the physical restrictions required, his work and educational history remain poor. [Mr Daher] demonstrated little change in work capacity between his original assessment in 2021 and 2023. Subsequent to the initial subject injury, [Mr Daher] continued working briefly but was reliant on light duties provided by both family friends and family members. Dr Low maintains that his physical restrictions confine him to sedentary based office work. He would not be fit fpr work requiring prolonged periods of weight bearing and this would include acting in a supervisory capacity on construction sites. Professor Jones believes that Mr Daher has excellent prospects for vocational rehabilitation, having previously described his goals of working in the construction industry. To that end [Mr Daher] has received his builder's licence and he now needs a home owner warranty which costs more than $60,000. He wants to be a licensed builder undertaking jobs up to $600,000 and perhaps commence with a granny flat using subcontractors, in which case he would be the supervisor without labouring."

Video surveillance

1. The defendants tendered a video depicting Mr Daher working on a building site on Monday 26 August 2024. Although the video does not expose everything that happened in the period between 6.59am and 1.59pm on that day, the matters that it does depict all occurred within that seven hour timeframe. None of the medical experts who treated or examined Mr Daher saw that video before they expressed the written opinions tendered in these proceedings. They were in contrast all given the opportunity to view the video before giving oral evidence before me.
2. Mr Daher can be seen working on a building site throughout the length of the video. He walks and stands for long periods. He operates a small excavator. He carries a steel excavator bucket which the parties agree weighed between 25kg and 30kg. Mr Daher demonstrates no significant restrictions on his ability to work on the tasks he performed during the day, including when he carries the bucket a short distance.
3. In my opinion, Mr Daher walked at all times with a barely discernible limp, but a limp nonetheless. That limp appeared to be a function of the disrupted and altered post-accident mechanics of Mr Daher's left foot and ankle rather than a response to pain. The medical opinions to which I have referred support that conclusion in my view. Mr Daher would appear also to have favoured his left foot to some extent when standing or resting. Mr Daher walked on uneven ground but not for any distance and not for any long periods of time. He did not at any time appear to be in pain or to behave as if he were experiencing pain. I am satisfied that Mr Daher was unaware that he was being filmed.
4. I accept without question the limiting fact that the video shows only what Mr Daher did on a single day since his severe ankle injury in August 2019. It does not depict or describe his abilities or his capacities on all of the intervening days in the five years since then. It does give a reasonably accurate and reliable picture of Mr Daher working for seven hours on a building site. It does not inform how Mr Daher was after working that day for that length of time or whether he was in discomfort that evening or whether he was able to or did in fact return to the same work the following day or any of the remaining work days that week.
5. Taking all of these matters into account, I do not consider that Mr Daher is presently as restricted or disabled as he says he is. He sustained a severe injury and would undoubtedly have been in excruciating pain at the time and to a similar but reduced extent during his recovery and convalescence. He was also unfit for a return to work for a considerable period. Even now he remains partially restricted by the limitations outlined by the doctors who have offered opinions in these proceedings. However, unlike many cases where surveillance material is difficult to assess or potentially ambiguous, Mr Daher's activities on 26 August 2024 appear to give a legitimate and reliable snapshot of his current status.
6. Mr Daher was not unexpectedly cross-examined by reference to his evidence-in-chief and the video of his work day on 26 August 2024. My general impression was not that Mr Daher was untruthful or exaggerating his disabilities in his evidence-in-chief or that he was unduly combative in his responses to this cross-examination. On the contrary, I got the distinct impression that Mr Daher's evidentiary statements quite reasonably and understandably put the best gloss on his injuries and disabilities without making any reasonable allowance for the improvements that the medical experts have noted and which he has to a great extent conceded.
7. Taking account of all these matters, I make the following awards of damages.

Non-economic loss

1. Mr Daher has undergone three operations, the third of which may be understood to have been an attempt to correct the continuing painful and troublesome consequences of the traumatically induced anatomical disruption to his ankle. Whereas the operation would appear to have reduced the extent and persistence of pain, no satisfactory resolution of the orthopaedic deformity has been achieved. That position will not change.
2. There is, in contrast, a prospect that Mr Daher will experience changes in the form of arthritic developments in the affected joint. These changes carry the likelihood of increased restriction as well as an increase in the prevalence and intensity of pain. Mr Daher's movement in his ankle would be expected to be further limited if that occurred. These matters are clearly going to interfere with Mr Daher's general amenity and enjoyment of life.
3. Doing the best I can, I consider that Mr Daher's non-economic loss should be assessed as 35% of a most extreme case or $266,525: see Civil Liability (Non-economic Loss) Amendment Order 2024.

Past out-of-pocket expenses

1. These expenses have been agreed arithmetically at $49,644.25.

Future out-of-pocket expenses

1. Mr Daher claims that as the result of his injuries and disabilities he will require medical and like treatment for the balance of his life. This treatment is said to include the need for general practitioner visits, medication including analgesics and anti-inflammatory medications, ongoing physiotherapy, hydrotherapy and gymnasium attendances. He also claims the need for review by specialist orthopaedic surgeons and radiological investigations. Mr Daher also claims the need for periodic counselling and psychiatric care, including anti-depressant medication. Pain management is said to remain a problem. Mr Daher claims the cost of orthotics in the sums of $1,350 per annum.
2. Mr Daher sustained a broken ankle. The hardware used to correct his orthopaedic problems has now been removed. There is no evidence that he will require any surgery in the future.
3. There is also no evidence that Mr Daher will require any kind of counselling or psychiatric care or consultations. I accept that his left ankle and foot disability is still present but the absence of any medical evidence or complaint by him about pathological anxiety and depression, and my general observations of him in the witness box and in court during the proceedings, does not persuade me that Mr Daher will ever incur medical bills for emotional problems related to his fall.
4. I do accept that Mr Daher may have a need for analgesics for ankle pain relief. In addition, I have no difficulty at all accepting that he has, and will continue to have, a genuine need for orthotic inserts to compensate for his disrupted left lower limb anatomy.
5. Mr Daher claims $25,000 for future out-of-pocket expenses which I suspect is a reference to Dr Giblin's estimated cost of surgery. I do not accept that Mr Daher will now require any further surgery since Dr Suthersan's last intervention. However, Mr Daher will require analgesics and orthotics and the sum claimed would easily be taken up by these expenditures over Mr Daher's future years.
6. I therefore allow the sum of $25,000 for future out of pocket expenses.

Past and future economic loss

1. Mr Daher was born in December 1991. He is now 33 years of age. He has 34 years until his expected retirement at the age of 67 (865.9).
2. Mr Daher's claim for economic loss as the result of an inability or reduced capacity to work is potentially both the most significant portion of his damages claim as well as possibly the most difficult of his various heads of loss to assess.
3. Mr Daher's pre-injury net weekly earnings were $2,100 per week. He suggests that his weekly net earnings would have increased to $2,225 by the time of the hearing before me. Total lost net earnings calculated by an average of these sums ($2,167.50) for the 275 weeks since August 2019 is approximately $595,000. During the same period, Mr Daher worked for himself earning $20,000 as well as for Catalyst Constructions at the rate of $388 per week for eight weeks and $405 per week for ten weeks, or $27,150. Mr Daher claims a net loss for this period calculated as $595,000 minus $27,150 which equals $567,850.
4. The relevance of that calculation is obviously predicated upon an acceptance that Mr Daher has effectively been unable to work at all between the date of his accident and now. Mr Daher's evidence was that he commenced employment with Catalyst Contracting Pty Ltd as a construction assistant on 8 May 2024 working 20 hours per week and earning $388 net per week and later $405 net per week. His working hours there were flexible as long as he completed 20 hours in the week. He said that on average he would work five days per week, four hours per day.
5. Mr Daher said that he obtained work with Catalyst Contracting by maintaining contact with its director, Joseph Sahyoun. Mr Daher had previously worked with Mr Sahyoun when they both worked for Jasara Constructions many years ago. When Mr Daher was completing his apprenticeship and working under his own ABN, Mr Daher subcontracted work with Catalyst Contracting.
6. After his accident, Mr Daher continued to subcontract work with Catalyst Contracting until the end of 2019 when he said, "I stopped receiving work". Mr Daher said, "Joseph was aware of the injuries I sustained, and I believe that is why he stopped giving me work". Mr Daher also said, "I have contacted Joseph for employment when my workers compensation weekly payments ceased however he did not have any available work for me at the time".
7. Mr Daher was cross-examined about his work in this period: "Q. I'm sorry to do this. Can I invite you to look back at your second statement please, and the second page of it if I may please, Mr Daher. Do you see there in paragraph 4 at the top, 'After the accident I had continued to subcontract with Catalyst Contracting until the end of 19 when I stopped receiving work?' You see that? A. Correct. Q. Now just moving past the next sentence. You say this. I have contacted Joseph for employment when my workers' compensation weekly payment ceased. Did you see that? A. Yes. Q. When was that approximately? Do you know? A. I don't recall the exact time. Q. Nevertheless, the workers' compensation payment ceased, and you rang up Joseph and said, well, have you got any work for me? A. I had always been ringing him up. But after it ceased, I rang him up again. He's one of the people that I was asking for work. Q. But did you ring him up before then? A. I had. Yeah. Q. Before the workers' compensation payment ceased? A. Well, yes, whenever - yeah. I did. Q. Whenever what? A. I did - well, they - they started trying to get me back into work and stuff like that. So I tried finding, you know, my own job instead of them trying to find me one. Q. Well, sir, you say Joseph was aware of your injuries, and you believe that was why he stopped giving you work. That's what you say there, isn't it? A. That - that could - that's what I believe. Q. So he did stop giving you work? A. Yes. Q. That was after the end of 2019? A. Correct. But there was also COVID and whatnot, so you know. But in general that's what I believe. Q. Well, I'm just sorry looking at your statement. Joseph was aware of the injuries I sustained. I believe that is why he stopped giving me work. Full stop. I had contacted Joseph for employment when my workers' compensation weekly payment ceased. You don't suggest there that between the end of 19 and whenever your weekly compensation payment ceased that you contacted Joseph for employment, do you? A. I haven't put it in there. No. But I didn't - I don't know if that was relevant. Q. What you wanted the Court to understand was that the work he was giving you stopped, you were receiving workers' compensation payments, and when they ran out you went back to him for work. That's what you intended to convey in that paragraph, isn't it? A. That's what happened. Q. Sorry? A. That's what happened. Yeah. Q. It is what happened? So the payments did stop? A. Yeah. Q. And you didn't contact him again until after your workers' compensation payments-- A. No. I was - as I said, I was always contacting him even before. So I was always trying to get, you know, do my best to get back into work."
8. It is pertinent at this point to recall what was happening with Mr Daher from a medical point of view. Dr Negrine surgically removed the orthopaedic hardware from Mr Daher's ankle on 22 June 2020. That was his second operation. He remained in receipt of physiotherapy between 13 August 2020 and 15 March 2021. I find that Mr Daher was totally disabled from any form of work for which he was suited up until at least that date.
9. Mr Daher's company CDM was deregistered on 1 February 2021. He incorporated a new company, Elite Build Contractors Pty Ltd on 5 March 2021. Mr Daher obtained his builders licence on 28 February 2022.
10. Not long after that, on 26 April 2022, Mr Daher was referred by his doctor Hany Hanna to Dr Suthersan following an X-ray and ultrasound on 21 April 2022. He consulted Dr Suthersan on 9 May 2022 and was referred for an MRI of his ankle. On 13 May 2022, Dr Suthersan recommended further surgery due to the deficiency in Mr Daher's tibialis posterior tendon and his 10 degrees hindfoot collapse on the left side.
11. On 29 July 2022, Dr Suthersan performed a calcaneus osteotomy and tibial posterior tendon reconstruction and scar revision of Mr Daher's left ankle. That was his third operation. He remained in a cast following that surgery until 8 September 2022. Mr Daher was advised by Dr Suthersan on 23 September 2022 to commence weightbearing in a controlled ankle movement boot with orthotics. On 8 June 2023 Mr Daher consulted Dr Suthersan who recommended that he retrain in a sedentary job if possible.
12. I find further that Mr Daher was totally disabled from any form of work for which he was suited up until at least 20 August 2023.
13. It was not until 8 May 2024 that Mr Daher commenced his employment with Catalyst Construction, to which earlier reference has been made.
14. I consider that Mr Daher is entitled to past loss of income for the four year period ending on 20 August 2023 in the sum of $450,000 (rounded) calculated at the weekly rate of $2,165.00. Thereafter I consider that Mr Daher has sustained a weekly net loss of $1,000 per week up to 20 December 2024 amounting to $67,000. That loss is continuing. Accordingly, from 1 December 2024 until his projected date of retirement, Mr Daher is entitled to compensation for the loss of future income at the rate of $1,000 net per week, being $1,000 x 34 years (865.9) x 85% = $736,015. My reasoning is as follows.
15. I find that, but for his accident, Mr Daher would have continued to work with Gold & Eagle and would have continued to earn income with that company or its equivalent at the rate of approximately $2,167.50 net per week. As I have indicated, I am satisfied that he sustained such a loss until 20 August 2023. Between then and now, Mr Daher earned approximately $27,500. However, having regard to the evidence before me indicating that Mr Daher has been able to work on a building site with limited visible restrictions, I consider that, taking account of that evidence as well as Mr Daher's evidence and the medical experts, his ability to earn income was greater than that amount would suggest. In very general terms, as I have also indicated, I consider that since August 2023, Mr Daher's weekly net loss of income has been in the order of $1,000 net per week.
16. Mr Daher's claim is based upon a total loss of an ability to earn income at the rate he was earning when injured, less an estimated weekly sum earned by him amounting to approximately $405 net per week, or $1,847. The evidence does not support that claim: the sum of $405 in my view under-represents his actual earning capacity which I consider to be closer to $900 net per week. Having regard to the video evidence, I am comfortably satisfied that Mr Daher could perform work of the type that is there depicted for something in the order of 40 hours. Mr Daher's loss is therefore $1,000 net per week, being the difference between his pre-injury earnings and his likely present income earning capacity of $1,167.50 net per week.

Norris v Blake (No 2) (1997) 41 NSWLR 49*

1. Mr Daher claims damages upon the basis that he has sustained losses, in addition to those calculated by me by reference to the rate he was earning when injured, which are not accounted for when assessed in that way. He reasoned as follows.
2. Mr Daher was an enterprising, hardworking employee. He was valued by Gold & Eagle. He was given a senior supervisory role in addition to his other works and appears to have been the contractor most trusted by Mr Metlege, who was sufficiently impressed with his work that he kept Mr Daher fully engaged over a period of proximally four years before his injury.
3. Mr Daher has given evidence of his intentions and desire to work his way off the tools to form a successful building company similar to that of his brother Andrew Daher. This evidence is corroborated by Mr Daher's wife. Mr Daher's brother also corroborates Mr Daher's potential to have followed in that career path.
4. Mr Daher was a newly married man with a young family. It was likely that he would have taken steps to provide for his family in the most remunerative way he could. He submitted that it was more probable than not that within several years of the date he was injured Mr Daher would have taken steps to establish a successful building company. Mr Daher had contacts within the industry including his brother.
5. Mr Daher submitted that, given the quality of his work, the responsibilities with which Mr Metlege entrusted him in terms of the supervision and completion of Gold & Eagle's projects and Mr Daher's own contacts within the industry, there is no reason to believe that he could not have built a successful building company and made returns significantly in excess of those he could ever have made working either for wages or at an hourly rate as a contractor.
6. Mr Daher's brother gave evidence that he was paying himself $1,239 net per week from his business and additionally was making a profit of $150,000. His business employs six workers and regularly engages another six contractors. This is the mark of a successful business, which has been in existence for approximately 10 years.
7. Mr Metlege had the ability to watch and form views about Mr Daher's quality of work and his ability to go out on his own. Mr Metlege gave no evidence that in his view Mr Daher could not have been a successful builder. Indeed, all of Mr Metlege's evidence is praiseworthy of Mr Daher's skills and abilities, consistently with the high level tasks Gold & Eagle was entrusting to Mr Daher. Further, Mr Metlege did not give any evidence that the kind of income earned by Mr Daher's brother was unrealistic or that conditions within the industry are such that it is not possible to start a profitable business at present or that if Mr Daher attempted to do so, he would likely be unsuccessful. However, Mr Daher conceded that it is difficult to know whether he could or would have done so.
8. These are the issues that confronted the trial judge in Norris v Blake at first instance. The correct approach is that described by Clarke JA* at 72-73: the appropriate way of dealing with these issues is by way of an allowance for a positive vicissitude.
9. Mr Daher submitted that an appropriate way of compensating him would be to allow "a modest buffer" for the loss of the prospect of being able to establish a successful building business. He submitted that a sum in the order of $500,000 would be reasonable.
10. Inherent in Mr Daher's argument is the proposition that his injuries and disabilities are such that they have prevented him from embarking upon his own, independent career as a builder. In order for such an argument to succeed, it seems to me that Mr Daher would have to demonstrate that the injuries interfered with or impaired his ability to undertake the entrepreneurial and administrative tasks associated with the commercial venture that is proposed. By way of analogy, the loss of an aspiring pianist's fingers could be related both to his or her ability to play the piano to earn income performing as a pianist as well as to his or her ability to establish, conduct and teach students to play in a music school opened as an additional income producing venture.
11. The burden of Mr Daher's argument must be that his capacity to continue to work "on the tools" is directly related to the likelihood that he could or would have been able to move into fulltime work as the proprietor of a building company. Although there may appear to be a superficial attraction to the contention that a carpenter who cannot work full-time as a carpenter could not expect to become successful as a self-employed builder, the proposition does not withstand scrutiny. That is not to say that I am unmindful of the practical economics that it would be easier if Mr Daher were able to contribute his own labour to the proposed venture so as to avoid the need to pay a wage to an employed carpenter or the equivalent who would not be needed if Mr Daher were fully fit. That analysis does not, however, come to terms with the underlying contention that Mr Daher's injured ankle somehow stands in the way, even today, of him being or becoming a very or even moderately successful self-employed builder. The loss of opportunities sustained by Mr Blake were directly related to his catastrophic injuries. Mr Daher's similarly asserted loss of opportunity does not seem to me to be a function of his severely injured ankle.

Past and future loss of superannuation

1. I will require the parties to furnish me with the calculation under this head of loss having regard to my other findings.

Past and future domestic assistance

1. Mr Daher claims damages for past and future domestic assistance. He contends that he has had and continues to have difficulty undertaking his pre-accident household and domestic duties. He has in the past received assistance in this respect from his wife and her parents. Mr Daher and his wife formerly shared accommodation with his parents-in-law but now live separately with their child.
2. Mr Daher originally claimed one hour per day for domestic assistance with respect to domestic tasks which he previously undertook but which he can no longer perform. He claimed damages for the future at the rate of $55 per hour for seven hours per week for the balance of his life expectancy or alternatively assistance on a gratuitous basis pursuant to s 15 of the Civil Liability Act. In the further alternative, Mr Daher claims damages by way of a buffer or cushion to compensate him for the possibility of the need for commercially provided assistance in the future. By the time that final submissions were made on 8 October 2024, that claim had been reduced to "two to three hours per week".
3. I confess to some difficulty in this case accepting that Mr Daher has a continuing need for future domestic assistance. For example, I do not accept that he could not shop for groceries either alone or with someone else. There is a significant tension between the proposition that Mr Daher could not do so, or could not perform tasks of similar physical difficulty, and the evident ability he has demonstrated working on a building site. Any realistic assessment of what is involved performing domestic tasks inside the home such as washing the dishes, vacuuming or mopping floors, cleaning windows or making beds, and even moving heavy furniture, when compared and contrasted with what the video reveals he can do, leads me to conclude that Mr Daher is presently capable of coping with such work and probably has been since at most about four years or so following his accident. Activities such as garden maintenance and lawn mowing and even car washing are in a slightly different category.
4. That is not to say that Mr Daher may not encounter some difficulties in the future as the vicissitudes of aging interact with the predicted development of arthritis in his ankle. However, assessing compensation for the need for domestic assistance calculated at some nominated hourly rate or by reference to an estimate of hours per week in the circumstances is both extremely difficult if not on one view completely artificial.
5. Taking account of all of these matters, I consider that a lump sum of $50,000 is adequate and sufficient to compensate Mr Daher for his past and anticipated need for domestic assistance.

Fox v Wood

1. I will require the parties to furnish me with the calculation under this head of loss having regard to my other findings.

Section 151Z

1. CDM Contractors Pty Ltd is not a party to these proceedings but nevertheless remains potentially liable to Mr Daher as his employer. The fact that Mr Daher was the sole director of the company or that he has otherwise been found by me to have contributed by his negligence in his personal capacity to his loss and damage does not alter that position: see generally Andar Transport Pty Ltd v Brambles Ltd (2004) 217 CLR 424; [2004] HCA 28. CDM is liable to Mr Daher in the same way that Andar was liable to its employee Mr Wail for the injury suffered by him. So much is uncontentious.
2. The matter of interest for present purposes is the extent of CDM's liability as an employer when compared with the liability of the non-employer defendants: see Leonard v Smith (1992) 27 NSWLR 5 and Grljak v Trivan (1994) 35 NSWLR 82 at 88. By reason of my conclusion that Mr Miller is not liable to Mr Daher, only the liability of Gold & Eagle need be considered in this context. Moreover, Gold & Eagle's hypothetical claim for contribution against CDM is not barred by Mr Daher's dual responsibilities as a director and employee of CDM: Andar at [52].
3. In my view, CDM's culpability is small when compared to that of Gold & Eagle. The latter had control of the site and was responsible for the construction of the penetration. It was also responsible, in the context of carrying out the works that were the subject of its contract with Mr Miller, for the safety precautions of the sort that I have concluded should have been put in place. CDM's liability relevantly extended only as far as ensuring that any place at which its employee Mr Daher was required to work was safe. For as long as the penetration was covered, it was safe. At the point when the cover was removed, the premises were immediately rendered unsafe. The installation of guardrails or a banister in the way I have concluded could not have been the responsibility of CDM at the point before Mr Daher removed the cover. That was the responsibility of Gold & Eagle. However, the risk that the cover might be removed, in the absence of such a protective system, was one against which CDM should have protected Mr Daher. That risk did not exist at all times and so was a risk of less significance than that created by the ever present possibility that the penetration cover could be removed at any time.
4. Any apportionment between CDM and Gold & Eagle involves the application of s 5 of the Law Reform (Miscellaneous Provisions) Act 1946. I consider that, having regard to the respective extent of their responsibility for Mr Daher's loss and damage, it is just and equitable that CDM should contribute 12% and that Gold & Eagle should contribute 88%.

Conclusion

1. I have concluded that Mr Daher is entitled to damages against Gold & Eagle but not against Mr Miller. I am uncertain whether that gives rise to any costs issues having regard to the fact that Mr Miller and Gold & Eagle shared legal representation in these proceedings.
2. It will in any event be necessary for the matters to which I have referred that require calculation, including the s 151Z(2) calculation, to be considered in the light of my findings. I will therefore direct that the parties confer with a view to performing those calculations and to provide me with their conclusions. The matter may be listed for the entry of judgment in the amount so calculated and any argument as to costs if so required by arrangement with my Associate.

Amendments 05 March 2025 - [45] Typographical error corrected 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: 05 March 2025