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1. The proceedings were commenced on 22 November 2024. Amendments were made to the statement of claim over time with a further amended statement of claim being filed on the first day of the hearing and a minor amendment on the last day.

2. The latest pleading has four defendants but, in reality, there is only one defendant. The first defendant is in liquidation and its role, under the appropriate legislation, has been assumed by the fourth defendant. On 3 August 2026, a consent judgment was ordered in favour of the third defendant against the plaintiff.

3. The second defendant has apparently lost interest in the matter. Its lawyers withdrew from the proceedings, with leave, and the second defendant did not appear at the hearing. On the fourth day of the hearing, the plaintiff asked me to enter judgment for the second defendant against him with no order as to costs. Following the fourth defendant expressing no opposition to this course, I entered the judgment as requested.

4. All of the cross claims that have been filed were dismissed with no order as to costs. As a result, the proceedings ultimately involved only the dispute between the plaintiff and the fourth defendant.

5. The fourth defendant is to be treated, effectively, as the plaintiff’s employer. For convenience, I will refer to the fourth defendant as the defendant.

6. The proceedings are a claim for damages suffered by the plaintiff as a result of an accident he suffered on 14 August 2023. The accident involved the plaintiff falling through a skylight into a laundry in the course of his duties working for the first defendant, a scaffolding company.

7. The heads of damages claimed by the plaintiff are non-economic loss, past and future economic loss, past and future medical expenses and future domestic care, the latter limited to defined periods after any surgery the plaintiff may undergo in the future.

8. The plaintiff’s causes action are of negligence and breach of statutory duties on the part of the employer, in particular against the background of the obligations of an employer to a worker.

9. The defendant’s response was an outright denial of liability to the extent that the accident asserted by the plaintiff did not happen at all. In the event that this defence did not succeed, the defendant pleaded contributory negligence on the part of the plaintiff.

10. In addition, the defendant challenged the nature, extent and consequences of the plaintiff’s asserted injuries.

11. The defendant’s case on liability necessitated a comprehensive attack on the plaintiff’s veracity. The only explanation, submitted the defendant, for the plaintiff’s assertion he had fallen through the skylight was that he had made up the story. The plaintiff’s credit, and the credit of the defendant’s lay witnesses, was therefore at the core of the case. Because of its importance, I will indicate from the outset the conclusions I have come to about credit.

12. The plaintiff was at times argumentative and perhaps combative. These traits were no doubt a product of his incredulity at many of the questions he was asked, both as to their absence of a base (instructions), and stemming from the allegations of absolute dishonesty which were put to him. An example of the former was the unsubstantiated suggestion that a fake date had been imposed on a text message.

13. My view of the plaintiff was that his evidence was reliable, although there were some aspects on which he was mistaken. An example of a mistake was his evidence about the lock on the laundry door. But as to the occurrence of the accident, in the manner described by the plaintiff, I accept his evidence.

14. A lay witness called by the plaintiff, Mr Farquhar, was overwhelmingly honest. This obvious honesty was not apparent to his cross-examiner who put matters to him doubting his veracity. No evidence was called to contradict Mr Farquhar’s evidence.

15. Of the three witnesses called by the defendant, the first was not believable, the second was either hiding behind a failed memory or had an appalling memory, and the third was often evasive and keen to avoid the questions he was asked.

16. I hope these conclusions will be explained by my following reasons. Before the accident

17. The plaintiff was born in 2000 in the Murrumbateman area. He attended a local primary school and then a local high school up to Year 10. The plaintiff then transferred to Gungahlin College where he completed the two years of the Higher School Certificate. I am not sure of the final result he achieved, but on his own admission he was not a high academic achiever. The plaintiff was suspended on a couple of occasions, but he did complete his schooling. He described himself as “troubled”, in that he did not enjoy school. The plaintiff’s strengths were obviously in physical endeavours.

18. The plaintiff’s interest in sport was extensive. His preferences were for rugby league, football and boxing. He was so good at rugby league that he joined a Canberra Raiders Under 16 development squad. Unfortunately, his rugby league ambitions were brought to an end by knee injuries in July 2016 and April 2017. I assume the same injuries terminated his football ambitions.

19. The plaintiff did persist with boxing and was initially trained by his father. At one stage the plaintiff decided to seek training from a gym not associated with his father and this led to a falling out between them. They did reconcile some time later. The plaintiff resided with his father after his parents separated when he was about 17 years of age.

20. The plaintiff’s capacity and dedication to boxing were described by his trainer, Mr Farquhar. He said the plaintiff was very fit and had no restrictions in his arms or back. He was strong and had “fast twitch fibres”, which put him in the top 1% of athletes for speed.

21. Mr Farquhar was part of “the elite training squad for the Australian Institute of Sport” and had trained special forces at ADFA and Duntroon. The significance of Mr Farquhar’s evidence is that despite the plaintiff’s various ailments, in particular concerning his back, he was able to maintain peak fitness.

22. Besides the injury to his knee, the plaintiff has had a number of other physical issues. The most relevant is persistent, but intermittent, back pain, in particular between his shoulder blades. He first saw a doctor about this pain in March 2016 and then consulted doctors and had various scans from time to time. These included an MRI scan in July 2017, when disc damage was detected in the thoracic spine. A guided injection into his facet joint at the T 8/9 level in August 2017 provided some, but not permanent, relief.

23. The plaintiff reported “long-term back pain” to medical practitioners he consulted in 2019. He told a general practitioner in May 2019 that on occasions he would cry in pain. He was prescribed Lyrica but did not take the drug, or in fact other medication that had been suggested. This was because his father had told him not to do so. His father apparently did not believe in painkilling medication.

24. Another major medical condition suffered by the plaintiff occurred in early 2023 when, as a result of high blood pressure, the plaintiff suffered kidney damage. The plaintiff underwent a laparotomy and left renal bypass at Canberra Hospital. Complications following surgery kept him in hospital for about a week.

25. The plaintiff used illegal drugs, in particular cocaine from time to time, and was arrested in Sydney at a music festival for consumption of this drug. The plaintiff also had other minor confrontations with the law, including charges of assault and negligent driving.

26. The plaintiff seems to have suffered from intermittent episodes of depression, perhaps as a result of drug use. A clinical note on 16 June 2023 suggests the plaintiff was taken by ambulance to hospital following an attempted suicide by hanging. The plaintiff explained that the note was misleading in that he had been in a hotel in Canberra with a woman and had consumed a good deal of alcohol and drugs. Because he was due in court the following day his brother had become worried and had come to the hotel where the only apparent way of obtaining access to the plaintiff’s hotel room was by calling the police and an ambulance. I accept the plaintiff’s explanation of the events of the night.

27. While still at school the plaintiff had part-time jobs at McDonald’s and Domino’s, the latter as a delivery driver.

28. The plaintiff’s father was an experienced scaffolder. The plaintiff harboured an ambition to follow in his father’s footsteps. After school, the plaintiff had an assortment of labouring jobs which included some concreting work and also some scaffolding. He worked with his father for a brief period. The accident

29. The plaintiff’s father had two associates in the scaffolding business. They were brothers, Mr Keith-James (KJ) Truro and Mr Adrian Truro. Without disrespect, I will refer to the brothers as KJ and Adrian.

30. The first defendant (the employer) was run by KJ. Adrian had a leading hand position. The plaintiff had met KJ and Adrian when working in Berrima, with his father, in 2021.

31. On about 6 July 2023, the plaintiff sent a text message to KJ asking if he had any work available. KJ responded positively and the plaintiff commenced working for the first defendant the following day. He was part of a team made up of KJ’s family members and an Irish man called Tommy.

32. The employer’s business concerned scaffolding. In July 2023, the business was operating at a number of sites including some residential constructions in Tuggeranong, at a basketball stadium within the Australian National University (ANU) and at the Australian Defence Force Academy (ADFA) in the Canberra suburb of Campbell.

33. The work at ADFA was being carried out by the first defendant as a subcontractor to the second defendant, which was itself a subcontractor to the third defendant.

34. On 14 August 2023, the plaintiff was picked up from his father’s home by Tommy and taken to the ANU worksite. Soon after arrival, KJ informed the team that they were to go to the ADFA worksite where “editing” works were required. I understood editing to refer to changes to be made to existing scaffolding.

35. The team travelled to ADFA where the plaintiff signed in and then attended a ‘toolbox’ meeting conducted by the third defendant.

36. The task assigned by KJ to his workers was to extend the scaffolding to the roofline of a particular building, known as Building 57. Photographs in Exhibit C show the relevant area. The scaffolding had already reached between the first and second set of horizontal windows.

37. The plaintiff said that access to Building 57 was unrestricted. He disagreed that he needed to go through a gate to access the worksite.

38. The plaintiff was instructed to obtain scaffolding pieces from a cage on the corner of the building and then to form part of a human chain, which was to lift the scaffolding parts to the level where the vertical extension could begin. This involved the workers hanging “monkey like” from the horizontal pipes of the scaffolding (called ledgers) and then lifting up the pipes to the worker above.

39. The plaintiff was positioned about 1.2 m above the green roof of the building seen in the photographs. This building was a laundry. After working in the human chain for a little while the plaintiff was instructed to return to the ground. In descending from his position, he stepped back onto the skylight and fell through it.

40. As the plaintiff fell his arms and shoulders were thrust upwards and he suffered lacerations to one hand as he attempted to halt his fall. The plaintiff struck a washing machine with his back as he descended, and he came to rest on the ground. He believes he was unconscious for a short period of time.

41. The plaintiff said he was unsure whether he had previously been aware of the skylights.

42. Looking at the photographs in Exhibit C it is difficult to imagine scaffolding between the skylight and the wall of the building. However, the diagrams (in particular Figures 9, 10 and 11) indicate, by shading, the position of the scaffolding relative to the skylights. Looking at these figures, it can be seen how a person stepping backwards from the scaffolding might step onto the skylight.

43. It was suggested to the plaintiff in cross-examination that he might have been up-and-down from the laundry roof to the scaffolding 50 to 100 times before the accident. This would make it improbable that he was not aware of the existence of the skylight. It was also put to him that in stepping back, without looking, he was adopting an unsafe work practice, namely not looking where he was placing his feet. This cross-examination obviously went to the question of contributory negligence, but unfortunately, many of the questions were integrated into cross-examination of whether the accident happened at all.

44. It was at times difficult to precisely identify the defendant’s case with the questioning roaming between suggestions of absolute fabrication, and an acceptance of the accident but accompanied by contributory negligence.

45. It was also put to the plaintiff that his version did not reflect the pleadings in particular paragraphs 3.3 and 3.4 of the further amended statement of claim. On a technical level, it is correct that a distinction might be made between the plaintiff’s version and the words used in the pleading. However, I do not see the plaintiff’s version as necessarily falling outside the pleaded version especially when taken in the general context of the description of the accident.

46. Another suggestion put to the plaintiff was that he had not told the truth to medical examiners in that he had not told any doctor that he had stepped from a ledger onto the skylight. The plaintiff agreed that he had not used the word ledger. However, he does describe the accident as having stepped from scaffolding onto the skylight. If there is a distinction it is entirely without significance.

47. The plaintiff was also cross-examined about the roles and functions of his workmates. He was adamant that he had been given instructions by Adrian, and that some workers were occupied below him and some above. He was sure that Tommy had been the first person to come into the laundry as he lay on the floor. The plaintiff was equally certain that KJ had taken him to the first-aid station where a laceration to his hand was dressed and bandaged.

48. One area where the plaintiff was clearly mistaken in his evidence concerned the laundry door. The plaintiff said that it could not be opened from the inside, but only from the outside. Later evidence, and consistent with the photographs, is that the door could be opened from the inside but a swipe card was necessary to gain entry into the laundry. The plaintiff’s version simply does not make sense. I accept that he was confused and note that his condition following the fall would have been somewhat uncertain. I also note that his histories to Dr Blenkin and Dr Edwards-Smith are more in line with the real position. In his report, Dr Blenkin noted: Mr Demczyszyn was knocked out for “a little while”. Then he managed to stand and walk out of the area, which was locked from the outside.

49. Dr Edwards-Smith stated: He told me he was knocked out and when he came to, he was still in an area which was locked and he told me that his colleagues would not have been able to get to him as the door was locked.

50. The plaintiff rejected the notion that he had actually cut his hand on a roll of wire (called a tire wire) and that this was treated by KJ with the simple application of a Band-Aid.

51. It was suggested to the plaintiff that the dimensions of the skylight were 600 mm by 600 mm and therefore he was too large to fit through. These measurements are corroborated by the expert report of Mr Burn. However, contrary to the suggestion put by the defendant, Mr Burn does not in any way doubt the capacity of the plaintiff to have fallen through the skylight.

52. The defendant’s primary case, as stated above, was that the fall through the skylight simply did not happen. To this end the defendant called three witnesses. The first was KJ, who is a very experienced scaffolder and was the owner of the first defendant. KJ was adamant that the only injury suffered by the plaintiff on 14 August 2023 was a minor scratch to his hand caused by a tire wire.

53. KJ said that he was under the impression he was fully insured for workers compensation in the ACT. One of the reasons he thought so was because he had been issued a contract compliance document which permitted him to work on ACT government sites. When this document was called for, no document was initially produced but later surfaced in the form of Exhibit 7. No submissions were made as to how this document might have been interpreted to confirm workers compensation insurance. In fact, and to the contrary, the document lists compliance with certain legislation and entities but not including any workers compensation legislation.

54. I do not accept that KJ genuinely believed he had the necessary insurance cover.

55. Turning to 14 August 2023, KJ said that he was not sure if the workers had initially been directed to the ANU building site and then told to move to ADFA. Nevertheless, he attended ADFA at about 7am where his company was doing work over a number of buildings. He said that the site was cordoned off and under the control of the third defendant.

56. KJ was adamant that there was no scaffolding in the area suggested by the plaintiff. This is contrary to the assumption made by the plaintiff’s expert Mr Burn whose diagrams show scaffolding starting on the laundry roof. KJ said the roof would not bear the weight of scaffold. He said the scaffolding surrounded the laundry building and then went over the laundry roof. There was consequently no capacity, need, requirement or instruction to be on the laundry roof. Looking at the pictures of the roof, KJ’s evidence has a degree of attraction. I will return to my reasons for rejecting this evidence below.

57. KJ said he left the site after about half an hour in order to do the rounds of other sites where his company was engaged. He said he was never called back to Building 57 because of any report of an injury to the plaintiff. When he did go back, in the course of his rounds, he found the plaintiff to have a minor scratch on his hand. He took the plaintiff to the third defendant’s first-aid station. He left him there for Mr Lozancic to minister to the minor scratch. The plaintiff soon returned and carried on work. He did not take any days off work.

58. KJ said that the reason he took the plaintiff to the first-aid station was to comply with the sites’ protocol and to ensure proper relations were maintained with the third defendant. I think the latter is closer to the truth, with KJ conceding that his business relationship with the third defendant was important.

59. KJ was taken to the text messages between him and the plaintiff which occurred some days after 14 August 2023. These text messages, in my view, illustrate the improbability of KJ’s evidence. It is necessary to set out some of the messages in full.

04/09/2023 Plaintiff to KJ Bro I’m getting an mri done on my back and shoulder at 6.55pm from the fall that happened at adfa it’s getting worse and worse each day and I can’t keep taking opioids to just get through the day brother, I’m gonna have a couple days off and see how it goes whilst just resting is that all good? I can’t afford to have a heap of time off but a couple days I’m hoping will assist in me recovering, I’ll message you in a couple of days man.

05/09/2023 KJ to plaintiff Hey bro, yeah that’s fine to have a couple of days at 9.09am off… Did you hurt yourself when you scratched your hand up that day at ADFA?

05/09/2023 Plaintiff to KJ Yeah that cut was when I tried to catch myself before at 1.33pm I fell through the skylight bro was like a 5 m fall fell on my back and shoulder. I just don’t want to take endones any more just to get through work it’s hard enough mentally and physically being in so much pain bro I want to be able to do good work not be in pain doing the minimum because of it. I got physio today and tmr and am getting scans just to see what recovery I need. I’ll be all goods end of week I am hoping bro I’ll msg you tmr night

60. There are further messages from 11 September 2023 but they are not relevant to the point at hand. Remembering that KJ’s evidence was that the plaintiff suffered no more than a scratch on his hand requiring only a Band-Aid, to receive messages like those from the plaintiff (set out above) and not enquire about the fall is simply unbelievable if KJ was not aware that the fall had occurred.

61. KJ agreed that the third defendant had an important business connection with the first defendant. In addition, he said that had the fall through the skylight been reported the site would have immediately been shut down to enable a work cover investigation.

62. The factors set out in the previous paragraph, together with the probably known absence of insurance cover are ample explanation for KJ to not disclose the plaintiff’s fall to any other entity. The unchallenged family connection which seemed to run through many of the workers is consistent with there being no other person from the first defendant’s team who would corroborate the plaintiff’s version. The possible exception is Tommy, who was not related to KJ and Adrian.

63. The second witness called by the defendant on liability was Adrian. Adrian was a leading hand in the first defendant company and worked with the plaintiff in August 2023. He also said he could not recall the plaintiff falling through a skylight. He also could not recall the plaintiff having a scratch or taking the plaintiff home after the fall. Unlike KJ, who professed a more definitive memory, Adrian relied mostly on a failure to remember the events that took place three years ago.

64. I do, however, note that the general description given by Adrian of the existing scaffolding was closer to that of the plaintiff than of KJ. Adrian was content to assume there was scaffolding up the side of the building above the skylight (Transcript, 13 August 2026 at 385.35): HIS HONOUR: If you worked on the - if there was scaffolding up the side of that building - - -?---Yes. - - - you would have seen the skylights?---Okay. Is that fair?---That's fair.

65. I do not accept Adrian’s evidence to the extent that it is said to provide positive proof that the plaintiff’s fall did not happen. Whether his evidence was derived from a lapsed memory or a deliberate rejection of the plaintiff’s version, does not really matter. In simple terms, I prefer the evidence of the plaintiff over that of Adrian.

66. The third witness called by the defendant was Mr Nicholas Lozancic. He works for the third defendant as a site manager, which includes a responsibility for site safety. He knew KJ and the first defendant, and that they had been working at ADFA between June and September 2023. As a general statement, Mr Lozancic was an unsatisfactory witness. He seemed at pains to not answer obvious questions and to deflect questions which demanded no more than an application of basic common sense.

67. Mr Lozancic did not specifically remember the plaintiff or anything about 14 August 2023. He did, however, remember an occasion when a person was observed to have a finger injury. He asked that person if the injury had occurred on site because, had that been the case, a report would have been necessary. He was told that the injury was pre-existing and therefore no report was necessary. He offered the person a Band-Aid, which was accepted.

68. Mr Lozancic’s evidence is inconsistent with both that of the plaintiff and KJ. In respect of the latter, KJ had said that the injury had occurred on site and he had gone with the plaintiff to the first-aid site. Mr Lozancic could not say that the plaintiff was the person with the injured finger.

69. It had been put to the plaintiff that the worksite was cordoned off. Mr Lozancic, the very person who could have given evidence of the site being ‘gated’ was not asked about this fact in chief.

70. Mr Lozancic agreed that if the plaintiff had fallen through the skylight, it would have been regarded as a serious incident necessitating at least the shutting down of the work on Building 57. Mr Lozancic was reluctant to agree that closing down a part of the site would be detrimental to the first defendant, but quite obviously it would have been, both in relation to the first defendant’s ‘earning of money’ and the general relationship with the third defendant. The falling of the plaintiff through a skylight that should have been covered by the first defendant would not have sat well with the third defendant’s overall responsibility for safety on the site. In this regard, I note that KJ demonstrated a very casual attitude to safety when he gave this answer (Transcript, 13 August 2026, 344.6): And this one, on this roof, or the two on this particular roof - you know there were two [skylights], didn't you?---Yes. Neither of them had any protection, did they?---No. Why not?---That's not my job, mate. I'm just there to build scaffolds.

71. I do accept the evidence of both Adrian and KJ that working on a roof like that of the laundry would have required the skylights to be covered to avoid the possibility of falling through them. It is an obvious statement of workplace safety that the skylights should have been secured with some sort of covering.

72. The employer’s negligence, which I think is obvious, is as much based on the concessions made by KJ and Adrian as on any other evidence. After the accident

73. The plaintiff said that after the accident KJ had been summonsed. He arrived about thirty minutes later. He escorted the plaintiff to a first-aid station where, as stated above, his bleeding hand was treated. The plaintiff said he was later taken home by Adrian. He rejected the suggestion that Adrian had never taken him home. The plaintiff did not notice any bruising on his body, either at the scene or later at home. The defendant submitted the absence of bruising was consistent with there not having been a fall. No medical evidence was led to this effect. None of the doctors who gave oral evidence were asked to comment on the absence of bruising.

74. The plaintiff also rejected the assertion that he had continued working that day until 5pm. This suggestion arose from a time sheet which, at face value, indicates the plaintiff had worked until 5pm. The plaintiff said that his only involvement with the form was filling it out at the beginning of the day. The 5pm time was filled in the next morning by another person. This explanation is consistent with the starting times being inserted in obviously different handwriting but most of the finishing times (5pm) apparently being in the same handwriting.

75. The value of the time sheet as demonstrating any work times was soundly extinguished by KJ, who agreed that his recorded times of 7am to 5pm did not reflect his presence on the site. He left after about 30 minutes to tour his other jobs.

76. The plaintiff said that he texted his brother about the accident, consistently with the text messages that were tendered. I rejected the attack on the text messages to the extent that it was suggested they were fabricated. There was no evidence to substantiate the suggestion, and it was made entirely without foundation. In addition, as I said in separate reasons, the plaintiff gave first-hand evidence of the sending, receipt and content of the messages and their date, the latter seeming to be the point of contention. The defendant’s comments about the date being ‘fake’ had no basis.

77. The text message exchange with the plaintiff’s brother on 14 August 2023 reads: 11.22am Plaintiff to brother I fell through the roof. I can just go into your room bro 11.23am Brother to plaintiff call me

11.24.am Brother to plaintiff Are you okay

11.26am Brother to plaintiff Im at Harrison atm

11.29am Plaintiff to brother Yeah Adrian is dropping me off

78. I have already referred to, and commented upon, the text messages with KJ. The obvious tenor of these messages is an avoidance by KJ of any responsibility for the plaintiff’s accident. This is consistent with the later discovery of the first defendant not having appropriate workers compensation insurance to cover its activities in the ACT. The first defendant was then involved in at least four contracts in the ACT. Its failure to have appropriate insurance reflects poorly on the persons in control of the company, both as to their credit and their obligations as employers.

79. The plaintiff said he took the next two days after the accident off work. He was in pain all over his body, in particular the back of his head was sore, his left shoulder was throbbing and his lower and upper back were also painful. He said the pain in his upper back was different to that which had existed before the accident.

80. In relation to the two days off work, the plaintiff was shown an email from KJ’s wife (Teneille) inviting him, and other employees, to dinner at a restaurant on the evening of 16 August 2023. Although he did not recollect the dinner, he obviously attended because a photograph of him at the venue was tendered. It was suggested that his attendance at the dinner was inconsistent with his stated incapacity over the two days following the injury. I think there is some weight in the submission, but I also accept the plaintiff’s evidence that he had taken painkillers, and he would not have told his workmates about the accident because they, having been present, were already aware of it.

81. There is no doubt that the plaintiff’s admiration and respect for KJ and Adrian, as a result of their association with his father, would have led him to try and please the brothers as well as to secure future employment with their company. This is also why he never suggested to KJ that KJ was “playing dumb” in the text message exchange.

82. It was put to the plaintiff that he had worked on 15 August 2023 because of the contents of a document titled, “Chargeable Day Labour / Variation to Contract”. The document suggests the plaintiff worked for 8.5 hours on 15 August 2023, notwithstanding that the rest of the team only worked for three hours. The document was not created by the plaintiff. It is a document belonging to the second defendant, but no representative of the second defendant was called. I doubt the plaintiff, essentially a labourer, would have worked unsupervised for 5.5 hours. I place the reliability of this document, as to times, in the same category as the time sheet, namely totally unreliable.

83. After the two days off, the plaintiff went back to work but on light duties. He found this difficult because some of the other workers “bullied” him about being on light duties. He carried out light duties for a few weeks and eventually, on 31 August 2023, he saw a general practitioner. He said that he had not been to a doctor before because he felt guilty and he did not want to “dog” KJ.

84. In respect of light duties, KJ said there was no such thing in the scaffolding trade. I accept there might not have been any specific tasks classified as “light duties”, but that does not mean the plaintiff could not have been restricted to less strenuous work.

85. The general practitioner sent the plaintiff for an MRI scan, which took place on 19 September 2023. In the meantime, the plaintiff was facing criminal assault charges in New South Wales, which were listed for hearing in Goulburn. The plaintiff was acquitted of the charges.

86. The plaintiff said that he was existing on strong medication like Oxycodone and Endone. On 25 January 2024, the plaintiff and his father went to the ADFA building where the accident had occurred and took photographs, which became Exhibit B. Some short videos were also tendered but they are of little value. The plaintiff was asked if he had obtained permission to enter the site and to take the photographs. He said he had not. This seemed to be taken up as a credit issue by the defendant, which it clearly was not.

87. The plaintiff described the various treatment that he had over time. He saw an orthopaedic surgeon, Dr Vrancic, who suggested an operation to the plaintiff’s left shoulder. He decided not to have the surgery because the doctor told him he might not be able to participate in boxing after the surgery. It was put to the plaintiff that Dr Vrancic had not said that there would be a limitation following surgery on his capacity to box. This is plainly contradicted by the doctor’s clinical notes.

88. The plaintiff obviously has a deep passion for boxing because he maintains the ambition to return to the sport notwithstanding his injuries. To this end, he has been to Bali for stem cell treatment (of three different modalities) in an effort to return to good health and be able to box.

89. The plaintiff is currently in a relationship with a woman in Perth who is herself an amateur boxer. The plaintiff tries to keep up his physiotherapy exercises and as much gym training as he can manage.

90. The plaintiff has had some improvement in his shoulder after the Indonesian treatment but relief in his back was short lived. The plaintiff also takes peptides on which he has spent about $15,000 over the last 12 months. The peptides are self-administered by way of an injection into the stomach and left shoulder. The plaintiff believes that they assist with inflammation. This assessment may be more attributed to ‘Dr Google’ than to real medical science.

91. The plaintiff still has periods of depression and is endeavouring to see a psychologist in Perth. Despite periods of estrangement, the plaintiff is obviously heavily influenced by his father, who is against painkilling medication and consultations with psychologists and psychiatrists. It does seem the plaintiff is now getting over his obedience to his father and seems willing to seek appropriate mental health treatment. Expert evidence on liability

92. The plaintiff relied on two liability experts, Mr Ian Burn and Mr Michael Lawrance. Mr Burn is an engineer. Mr Lawrance is a health and safety professional whose concentration was on hazard exposure and its management. The defendant did not tender an expert report.

93. On the plaintiff’s evidence, if accepted, an expert was probably not necessary. The failure to cover the skylight was such an obvious act of negligence as not to require the opinion of an expert.

94. I will nevertheless give a short summary of the conclusions in the two reports.

95. It is very significant that despite leading evidence from KJ that the laundry roof could not bear the scaffolding, this proposition was not put to Mr Burn whose report assumed the presence of scaffolding as shown by the shading in Figures 9, 10 and 11 of his report. It should have been fundamental in the defendant’s case to put to Mr Burn, an engineer, both that his shading was incorrect and that the roof was not capable of supporting the scaffolding.

96. Mr Burn said there were two methods to ensure worker safety when working above ground: (1) enclosing the work area; or (2) having the worker wear a “fall arrest device secured to appropriately placed anchor points.”

97. In respect of the skylights, Mr Burn said: However where there are penetrations through the roof from which scaffold is to be constructed it is essential the penetrations are suitably protected to prevent inadvertent penetration by workers.

98. Suffice to say, the plaintiff was not secured, and the penetrations (the skylights) were not protected.

99. Mr Lawrance stated: Based on the information available for the preparation of this report there was a failure of some or all of the steps of falls from height hazard management and a failure of the implementation and operational stage as evidenced by Joshua Demczyszyn having no knowledge or involvement in any height safety or fall from height risk control formal or informal information or actions for dealing with penetrations on the laundry roof which was working including the skylight through which he fell.

100. In respect of Regulation 35 of the Work Health and Safety Regulation 2011 (ACT), Mr Lawrance made the obvious point: In my opinion, the hazard could have been eliminated by ensuring a worker could not step on the skylight by measures including placing and securing a physical cover over the skylight penetration. Liability and contributory negligence

101. By way of general comment, I have already made above some findings in relation to liability. The defendant submitted that I should draw a Jones v Dunkel inference (referring to Jones v Dunkel [1959] HCA 8; 101 CLR 298) in respect of the plaintiff’s failure to call a number of witnesses. The witnesses identified as giving rise to an inference that their evidence would not have assisted the plaintiff’s case, were the workmates said to have been present when the accident occurred and the plaintiff’s brother in respect of the text message said to have been sent to him following the accident.

102. My initial thought was that there was substance in the defendant’s submission because the plaintiff said there were witnesses to the accident, and in the light of the denial of its occurrence, one might have expected those witnesses to have given evidence. There was no evidence to suggest that any of the workmates, or the plaintiff’s brother, were unavailable to give evidence.

103. On further consideration, I have decided that no inferences should be drawn and that the absence of the witnesses should be treated as a neutral factor for both sides. With the exception of Tommy, the workmates seem to have been relatives of KJ and Adrian. A natural reluctance to give evidence against KJ and Adrian might be expected. Further, although the onus was on the plaintiff to prove his case, the direct and bold assertion by the defendant that the accident did not happen at all and that the plaintiff was lying about it, raises, I think, an evidentiary onus on the defendant to have called the witnesses.

104. As for the plaintiff’s brother, the plaintiff gave direct evidence about the messages he sent and he received. The issue about the date on the text message did not give rise to any evidence to corroborate the assertion that the date was faked.

105. Another matter submitted by the defendant was that the plaintiff would have been expected to immediately seek medical treatment or otherwise report the accident. Again, although the defendant was correct in submitting that the plaintiff must prove his case, I think it a relevant factor that the making up of a skylight story would be quite incredible. Firstly, there has been no suggestion that the skylight was broken at any other time besides 14 August 2023. Secondly, one wonders why the plaintiff and his father would have gone to the scene to take photographs and the videos.

106. Thirdly, if the plaintiff was intent on inventing an injury, then a much simpler event could have been imagined. Fourthly, one might have expected the plaintiff to have gone straight to a doctor to have his injury recorded immediately if he was intent on creating a base for a damages claim. It seems very odd that a person inventing an injury would wait over two weeks before seeing a medical practitioner and describing the fake injury.

107. The primary basis for the liability of the employer is its negligence in failing to provide a safe system and a safe place of work for the plaintiff. In my view, once the plaintiff’s version was accepted, and the opposing evidence of KJ and Adrian was rejected, that negligence was obvious and easily established.

108. There is a long-established duty of care owed by an employer to an employee. That duty involves the provision of a safe place of work and a safe system of work. On the plaintiff’s version, which I accept, these attributes were entirely absent. Leaving the skylight uncovered, allowing the plaintiff to work near or above it, and not warning the plaintiff to stay away from it, are each an example of an act of negligence by the employer.

109. It must follow that the plaintiff is entitled to a verdict in his favour against the first defendant.

110. Turning to contributory negligence, I am of the view that it has been established. The plaintiff had been working up and down the roof and scaffolding for some hours on the morning of the accident. The skylights are plain to see and it is hard to conceive that he was not aware of their existence, and in turn, the likelihood that they were a hazard. When the plaintiff put his foot back onto the roof, apparently without looking where his foot was being placed, there would have been a reasonable possibility that he might step onto a skylight. I think he should have taken care where he was putting his foot. His negligence is of course not in the same proportion as that of the employer, bearing in mind the latter’s high duty of care and the ignoring of basic tenets of safety such as covering a potential hazard.

111. I think a finding of 20% contributory negligence is appropriate.

112. The next question is whether this percentage of contributory negligence should be applied as a deduction to the damages recovered by the plaintiff. In a normal negligence claim, the reduction would automatically follow. The plaintiff submitted however, that because of the breaches of statutory duty, contributory negligence had no part to play.

113. The plaintiff’s submission was derived from s 102(2) of the Civil Law (Wrongs) Act 2002 (ACT) (the Act), which states: (2) However, if the claimant suffered personal injury and the wrong was a breach of statutory duty, the damages recoverable by the claimant for the personal injury must not be reduced because of the claimant’s contributory negligence.

114. Before s 102(2) of the Act can be applied, it is necessary to decide if there had been any breaches of statutory duty, and if the relevant statutes had given rise to a private right of action, or, in other words, an available cause of action.

115. As to both the existence of a private right of action and the applicability of a breach of regulations being a breach of statutory duties, I think the following paragraphs from Govic v Boral Australian Gypsum Ltd [2015] VSCA 130; 47 VR 430 answer both questions (footnotes omitted): 122. In O’Connor v S P Bray Ltd, Dixon J stated that, where a statute prescribed a course of conduct in the interests of the safety of members of the public or a class of them and did no more than penalise a breach of its provisions, the question of whether a private right of action arose from that statute must be determined as a matter of construction. However, he was cognisant that interpretation of such a statute would rarely yield a necessary implication positively giving a civil remedy. After referring to a number of authorities, he held that a provision prescribing a specific precaution for the safety of others in a matter where the person required to take the precaution was also required to exercise due care under the general law of negligence would give rise to a private right of action unless a contrary legislative intention appeared. This contrary legislative intention was to be discerned from the nature of the provision or the scope of the statute in which the provision appeared. 123. The reasons of Dixon J were cited in Sovar v Henry Lane Pty Ltd by Kitto J, with whom Owen J agreed, as authority for the proposition that there was a presumption that a statute conferred a private right of action upon a complainant where it provided against personal injury and the relationship existing between the person enjoined and the person protected gave rise to a duty at common law for the former to take precautions for the safety of the latter. However, Kitto J held that it was important to recognise that the question of whether a statute conferred a private right of action upon a complainant was one of statutory interpretation. He relevantly stated: The intention that such a private right shall exist is not ... conjured up by judges to give effect to their own ideas of policy and then ‘imputed’ to the legislature. The legitimate endeavour of the courts is to determine what inference really arises, on a balance of considerations, from the nature, scope and terms of the statute, including the nature of the evil against which it is directed, the nature of the conduct prescribed, the pre-existing state of the law, and, generally, the whole range of circumstances relevant upon a question of statutory interpretation. 124. The reasons of Kitto J have been subsequently cited with approval in a number of High Court authorities, including Byrne v Australian Airlines Ltd, Slivak v Lurgi (Australia) Pty Ltd and Andar Transport Pty Ltd v Brambles Ltd. In Byrne, the plurality (Brennan CJ, Dawson and Toohey JJ) expressed the principle as follows: A cause of action for damages for breach of statutory duty arises where a statute which imposes an obligation for the protection or benefit of a particular class of persons is, upon its proper construction, intended to provide a ground of civil liability when the breach of the obligation causes injury or damage of a kind against which the statute was designed to afford protection. The question is one of the construction of the statute ... One generalisation that can be made is that where the persons upon whom the statutory obligation is imposed are under an existing common law duty of care towards the persons whom the statute is intended to benefit or protect, the statutory prescription of a higher or more specific standard of care may, in the absence of any indication of a contrary intention, properly be construed as creating a private right. Thus ... legislation designed to protect the health and safety of employees in the workplace [has] been held to impose duties the breach of which gives rise to a right to sue for damages. 125. Kitto J’s reasons in Sovar accord with the current approach to determining the purpose of a statute favoured by the High Court. In Lacey v A-G (Qld), the plurality (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) stated that statutory purpose may appear from an express statement in the relevant statute, by inference from its terms and by appropriate reference to extrinsic materials. The majority relevantly stated that the statutory purpose did not exist outside the statute and instead resided in its text and structure, albeit that it could be identified by reference to common law and statutory rules of construction. 126. The principles discussed at [122] to [125] above apply not only to duties imposed by Acts of Parliament but also to duties imposed by regulations.

116. Similar principles were expressed by the ACT Court of Appeal in D’Arcy v Caltex Australia Petroleum Pty Ltd [2019] ACTCA 27; 347 FLR 367, at [107]-[108]: In the absence of a contrary legislative intention, a duty imposed by statute to take measures for the safety of others will be regarded as involving a correlative private right: O’Connor v SP Bray Ltd (1937) 56 CLR 464 (O’Connor) at 477-478; John Pfeiffer Pty Ltd v Canny (1981) 148 CLR 218 at 231. That is largely dependent upon the policy of the provision, rather than the meaning of the instruments: O’Connor at 478. Such a right is independent of negligence. The statute provides the right and the common law provides the remedy: Downs v Williams (1971) 126 CLR 61 at 74. The correlative private right will arise where the legislature creates a duty intended to protect a specified class of persons and the rights of a person within that class are infringed. The fact that a provision incorporates a penalty for breach does not necessarily exclude a right to sue for breach of statutory duty: Darling Island Stevedoring & Lighterage Co Ltd v Long (1957) 97 CLR 36 at 53; Sovar v Henry Lane Pty Ltd (1967) 116 CLR 397 at 405-406.

117. There is nothing in the regulations which would suggest any contrary intention to the existence of a private right of action.

118. The plaintiff submitted there had been obvious breaches of both the Work Health and Safety Regulation 2011 (ACT), and Scaffolding and Lifts Regulation 1950 (ACT). I agree. The leaving of the skylight uncovered in the circumstance of the plaintiff working in the vicinity of the skylight amounts to clear breaches of Regulations 34, 35, 36 and 78 of the Work Health and Safety Regulation 2011 (ACT) and Regulations 73(1)(b), (c) and (j) of the Scaffolding and Lifts Regulation 1950 (ACT).

119. The defendant’s response to the allegation of breaches was as follows (Transcript, 17 August 2026, 497.10): HIS HONOUR: Yes. If you just assume that I think there is some contributory negligence, not to the extent that you would want me to find, but just assume that there is some, what about the plaintiff's point about the breach of statutory duties? MS COSTIN: So I have turned my mind to that, your Honour, but I'm going to put the same point I made before - and I think your Honour is against me because I've made it during the hearing - is that the position that the defendant takes is that the plaintiff should have never been operating in that manner, which we say was unsafe. If he would have been on the board or on the actual scaffold the way it was expected of him to conduct work, whether the skylight was covered or uncovered, it's unreasonable, it's irrelevant, and secondly, there's a question whether, your Honour, covering the skylight would have been a matter for the first defendant or would have been a matter for the site owner in essence.

120. With respect, the response was untenable.

121. Further, I note that despite being invited to make submissions on s 102 of the Act, the defendant did not do so.

122. It must follow that my finding of contributory negligence will not lead to any corresponding reduction of the damages that I assess. Medical evidence

123. It is difficult to match some of the medical assertions put on behalf of the defendant with the defendant’s medical evidence. Perhaps the most obvious example is that it was suggested, I accept successfully, to Drs Nair and Cochrane that the plaintiff’s shoulder injury might have been a product of repetitive movement, boxing, weightlifting or scaffolding. However, the orthopaedic surgeon retained by the defendant, Dr Blenkin said in his report of 4 November 2025 (emphasis added): The described fall, with the arms being forced into abduction, is entirely consistent with causing this pathology, which is traumatic in nature. There is no pre-existing or underlying condition in the left shoulder. … The cost of the shoulder surgery I recommend is the order of $20,000. The need for this intervention arises entirely as a consequence of the incident.

124. Another anomaly arising from Dr Blenkin’s report is his statement that three specialists (Drs Tsai, Mourad and Nair) had apparently related the plaintiff’s thoracic spine condition to “long-standing Scheuermann’s disease”. However, when Dr Nair gave evidence, he specifically rejected the existence of this disease in the plaintiff’s spine. He said the ingredients of the disease simply did not exist in the plaintiff.

125. Dr Shahzad is an occupational physician. After seeing the plaintiff in August 2024, Dr Shahzad thought he required further investigation. Nevertheless, he identified injuries resulting from the fall to the thoracic spine, the lumbar spine and left shoulder.

126. Dr Shahzad spoke to the plaintiff again, via telehealth, on 12 June 2026. The doctor was brought up-to-date on various MRI and x-ray investigations, and was also provided with more recent medical reports from other practitioners. Dr Shahzad remained of the view that the above three areas of the body had been injured in the fall. The doctor thought there was a chance the plaintiff might have to retire early from work and that his range of occupations had been restricted by the injuries. At the time of consultation, the plaintiff was unfit for work.

127. Dr Nair is an orthopaedic surgeon. As mentioned above, under cross-examination, Dr Nair accepted that there could have been other causes for the plaintiff’s shoulder problems. However, it is to be recalled that the plaintiff had no history of shoulder difficulties before the fall.

128. Dr Nair said non-operative care was recommended for the thoracic spine problems. He noted that symptoms had increased dramatically after the fall. Dr Nair pointed out that forensic disc herniation seemed to have increased, which if it continued could require surgery. Dr Nair attributed the left shoulder tears identified on the scanning to the accident.

129. Dr Cochrane, who was also cross-examined, is a neurosurgeon. He saw the plaintiff in January 2025. Although the plaintiff did not specifically tell Dr Cochrane about his thoracic spine problems before the fall, the doctor did have pre-existing records available and did note the references to back pain in the records. Dr Cochrane noted that there was multilevel thoracic degenerative disc disease already in existence but that it had been “significantly aggravated”.

130. Dr Cochrane thought the plaintiff might have to retire 10 years earlier than expected.

131. Dr Cochrane did not think that any surgery to the thoracic spine was likely, and he noted there was no persisting restriction in the cervical or lumbar spine region.

132. Dr Kumar is a psychiatrist. He saw the plaintiff in April 2025. In his opinion, the plaintiff had suffered an adjustment disorder as a result of the fall. The defendant also tendered the report of a psychiatrist, Dr Edwards-Smith. This doctor noted the previous prescribing of antidepressant medication although the plaintiff told her he had not taken the medication. Dr Edwards-Smith agreed that the plaintiff had suffered an adjustment disorder as a result of the accident. Nevertheless, she did “not think that he is as incapacitated as he may present himself, noting that indeed he met his partner on an online dating site only eight months ago”. If this view was an expression of exaggeration on the plaintiff’s part, it was certainly not put to him.

133. Dr Edwards-Smith concluded: I think that [the plaintiff’s] physical symptoms are restricting his capacity rather than the psychiatric issues, which I consider to be fairly modest at this stage.

134. Ultimately, I do not think there is much contest between the ‘opposing’ psychiatrists.

135. Dr Donoghue, an occupational physician, was of the view that the plaintiff was not fit to work as a scaffolder. The doctor noted that the plaintiff was studying for Certificates III and IV in Fitness and was also doing a sports psychology course and a performance nutrition course. Dr Donoghue thought the studies “may lead to a more suitable career without heavy manual tasks.”

136. Mr Williamson, an occupational therapist, assessed the plaintiff on 11 September 2025. His report of 23 November 2025 was tendered by the defendant. It does not add much but it does confirm the plaintiff’s claim for some domestic assistance following shoulder surgery.

137. Dr Blenkin, an orthopaedic surgeon, saw the plaintiff on 4 November 2025. As noted above, he had little doubt that the plaintiff’s shoulder injury was caused by the accident. His report was tendered by the defendant. Dr Blenkin was at pains to point out that the alternative treatment being considered by the plaintiff was unnecessary and would be ineffective. Dr Blenkin was particularly concerned about stem cell treatment. He told the plaintiff to stay away from it.

138. Dr Blenkin thought the plaintiff should have left shoulder surgery. It would cost about $20,000 and there would be a need for about $2000 of physiotherapy. Dr Blenkin thought that if the surgery was performed, and successful, the plaintiff could return, at least as far as his shoulder was concerned, to scaffolding and boxing.

139. Dr Blenkin’s view about the plaintiff’s capacity following surgery may be at odds with that of Dr Vrancic, also an orthopaedic surgeon, specialising in shoulder surgery. In her clinical notes Dr Vrancic refers to “potential limitations in return to boxing.” Dr Vrancic like Dr Blenkin, believed that shoulder surgery could be beneficial to the plaintiff. She envisaged a four-week period in a sling followed by rehabilitation over 4 to 6 months. Dr Vrancic was less critical of stem cell treatment but did think there was “minimal clinical evidence of efficacy”.

140. Looked at overall, the plaintiff unquestionably had significant pre-existing problems, some of which, like his knee and renal issues, were probably not affecting him when he had his fall, and others, like his thoracic spine and a degree of depression, which may well have still been a factor in his life. Nevertheless, he was able to maintain physical based employment and a high level of fitness, as related by Mr Farquhar.

141. As a result of the fall, in my view, the plaintiff has significantly aggravated his thoracic spine, has a serious left shoulder problem, and a much less significant lower back injury.

142. The left shoulder is amenable to surgery, which is likely to improve his circumstances and capacity, but may impinge upon his ability to return to boxing. I think it clear that even with successful shoulder surgery, the plaintiff’s capacity to do heavy physical work, like scaffolding, is severely limited, and his future employment is likely to be as a personal trainer or similar.

143. In relation to psychological symptoms, I think the plaintiff is likely, as he was before the fall, to suffer occasional bouts of depression, but there will also be a continuation of the anxiety disorder arising from his circumstances, which have been caused by the fall.

Damages

144. I asked the plaintiff to provide a schedule of damages with provision for competing figures to be entered by the defendant. The request was strictly on the basis that the defendant’s primary position on liability was acknowledged, and the figures would only become relevant if I were to find against the defendant.

145. The parties provided a helpful schedule, as requested. I will state the competing positions when dealing with each head of damage. General damages

146. The plaintiff claimed $200,000 for general damages, while the defendant submitted that $110,000 is appropriate. I think the parties’ respective positions represent the range of general damages. The plaintiff has endured a good deal of pain and suffering from the fall and this is likely to continue, although perhaps, becoming less severe with time. Successful surgery to his left shoulder will also alleviate pain in this area. The aggravation to the plaintiff’s thoracic spine is likely to be permanent, as is the injury to the plaintiff’s lumbar spine, although the latter being of less consequence.

147. The plaintiff’s ambitions of being a scaffolder and a boxer have probably been extinguished, and this has been, and will be, a source of great disappointment to him, and possibly a cause of depression from time to time.

148. I have little expectation that the various forms of alternative treatment the plaintiff is undergoing will do him much good, but they may be seen as an effort to improve his condition without resorting to surgery.

149. I think general damages should be assessed at $165,000. Past loss of earnings

150. The plaintiff claimed $127,500 attributable to past loss of earning, while the defendant proposed $112,500. Both parties agreed on a rate of $1,000 net per week for 150 weeks. The defendant’s figure is lower because of a deduction of 25% for “pre-existing medical conditions”. Presumably this was a reference to the plaintiff’s thoracic spine. The difficulty is that while I accept there were times the plaintiff suffered a good deal of pain in his back, there is no evidence of this translating into him not being able to work. I therefore will not apply any deduction and will accept the plaintiff’s figure of $127,500. Past loss of superannuation

151. For past loss of superannuation, the plaintiff sought $15,300. In response, the defendant submitted $13,500. The parties agreed on the rate of 12% of net earnings so the difference between them is dependent on the starting figure. As I have accepted the plaintiff’s past loss of earnings, I will accept his lost superannuation benefits figure, $15,300. Future economic loss

152. This is where the parties are most at odds. The plaintiff submitted $711,963.60 is appropriate, and the defendant, $101,300. The plaintiff has allowed $1,500 per week for two years and then $700 per week for the following 39 years to age 67. The defendant has assessed the claim at $1,000 per week for two years but nothing thereafter.

153. There is no doubt, based on the evidence of KJ and Adrian, that a scaffolder has a potential to attract very high earnings. However, the plaintiff, despite his ambitions, was not yet a qualified scaffolder and may not have eventually obtained the necessary certificates. There may also have been periods off work if the plaintiff had succeeded (or perhaps been hurt) in his boxing career.

154. $1,500 is roughly net average weekly earnings, so I think this is the starting figure for the next two years. Thereafter, the plaintiff will need to build a career in personal training or some associated job, so is likely to have an initial reduced wage as he re-trains and establishes his employment. I think a loss of $700 per week for five years is appropriate. This will bring the plaintiff to 33 years of age. The plaintiff is then likely to have time off work from time to time over the balance of his working life (34 years) which I think is best dealt with by an effective buffer of $100 per week but deferred for seven years.

155. The calculations, on the 3% multiplier and deferral tables are: (i) $1,500 x 101.3 = $151,950 (ii) $700 x 242.6 x .943 = $160,140.26 (iii) $100 x 1119.2 x .813 = $90,990.96 (iv) $151,950 + $160,140.26 + 90,990.96 = $403,081.22

156. The figure of $403,081.22 now needs to be reduced by 15% for vicissitudes, bringing it down to $342,619.04. Future loss of superannuation

157. The plaintiff sought $99,674.90 for loss of superannuation benefits. The defendant proposed $12,662.50). The parties were obviously disagreed on the starting figure but also on the rate to be applied. The plaintiff submitted it should be 14% of the net loss; the defendant said 12.5%. I understand the current rate (from 1 July 2025) to be 12% with no increases factored in. I will therefore apply the 12% rate. This results in a figure of $41,114.28. Past out-of-pocket expenses

158. The plaintiff claimed $20,377 under this head. The defendant argued that$18,309.52 should be awarded. The defendant has accepted the plaintiff’s figures but reduced the total by $2067.66 attributable to the stem cell treatment. While, as I have said above, I doubt the efficacy of the treatment, there is no doubt the plaintiff spent the money in an endeavour to improve his physical condition. I think the expenditure was reasonable and connected to the fall. I will allow the plaintiff’s figure. Future out-of-pocket expenses

159. The plaintiff claimed $70,147.50 for his future treatment. The defendant only allowed $27,000). Both parties have allowed for future shoulder surgery at $20,000. The defendant has added imaging investigations of $2000 and various medical consultations and physiotherapy at $5000. The main difference is the plaintiff asking for $25 per week for the balance of the plaintiff’s life expectancy of 57 years. This is to cater for medical consultations, physiotherapy and medication.

160. It is difficult to know when and, and above all, if, the plaintiff will have the shoulder surgery. In a sense this makes the $20,000 allowed as a possible bonus. While I think the plaintiff will have some treatment over the rest of his life, I think it best covered by a buffer of $10,000 over the amount allowed by the defendant. Accordingly, I will allow $37,000.

161. Future care following surgery was agreed at $3,576.30

162. A summary of the damages I have assessed is:

General damages $165,000.00

Past loss of earnings $127,500.00

Past lost superannuation benefits $15,300.00

Future economic loss $342,619.04

Future lost superannuation benefits $41,114.28

Past out-of-pocket expenses $20,377.18

Future out-of-pocket expenses $37,000.00

Future care following surgery $3,576.30

Total $752,486.80

163. I have given reasons above for not reducing the total damages on account of contributory negligence. I will therefore give a verdict for the plaintiff for $752,486.80.

Orders

164. The orders of the Court are: (1) Judgment for the plaintiff against the first defendant in the sum of $752,486.80. (2) The first defendant is to pay the plaintiff's costs of the proceedings to be agreed or assessed. (3) Order (2) does not affect any costs orders previously made. (4) The parties have leave to request an alternative cost order.

I certify that the preceding one hundred and sixty-four [164] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Elkaim.

Associate: Date: 4 September 2026

************** Amendments 4 September 2026 Replace “fourth defendant” with “first defendant” Paragraph: [109] 4 September 2026 Replace “fourth defendant” with “first defendant” Paragraph: [164(1)]

4 September 2026 Amend to read, “The first defendant is to pay the Paragraph: [164(2)] plaintiff's costs of the proceedings to be agreed or assessed”.