Hossain v Unity Grammar College Ltd and Ors

HIH Casualty & General Insurance Limited v Pluim Constructions Pty Ltd [2000] NSWCA 281 Huddart Parker Ltd v Cotter (1942) 66 CLR 624; [1942] HCA 34 I & J Foods Pty Ltd v Bergzam Pty Ltd (1997) 14 NSWCCR 486; Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 John Pfeiffer Pty Ltd v Canny (1981) 148 CLR 218; [1981] HCA 52 Ku-ring-gai Council v Chan [2017] NSWCA 226; 224 LGERA 330 Laresu Pty Ltd v Clark [2010] NSWCA 180 Laundess v Laundess (1994) 20 MVR 156; Aust Torts Reports 81-316 Leichardt Municipal Council v Montgomery (2007) 230 CLR 22; [2007] HCA 6 Leighton Contractors Pty Ltd v Fox (2009) 240 CLR 1; [2009] HCA 35 McDonald (T/as B.E. McDonald Transport) v Girkaid Pty Ltd [2004] NSWCA 294; (2004) Aust Torts Reports 81-768 Najdovski v Krnojlovic [2008] NSWCA O'Connor v SP Bray Ltd (1936) 56 CLR 467; [1937] HCA 18 Public Transport Commission of New South Wales v J MacLenan v Segar [1917] 2KB 325 Public Transport Commission of New South Wales v J Murray-Moore (NSW) Pty Ltd (1975) 132 CLR 336 McDonald (T/as B.E. McDonald Transport) v Girkaid Pty Ltd [2004] NSWCA 297; [2004] Aust. Torts Rep. 81 - 768 Murray-Moore (NSW) Pty Ltd (1975) 132 CLR 336; [1975] HCA 28 South West Helicopters Pty Ltd v StePHenson [2017] NSWCA 312; (2017) 327 FLR 110 Rylands v Fletcher (1868), LR 3HL 330 State Rail Authority of New South Wales v Brown [2006] NSWCA 220 Stevens v Brodribb Sawmilling Company Pty Ltd (1986) 160 CLR 16; [1986] HCA 1 TNT v Christie (2003) 65 NSWLR 1; [2003] NSWCA 47 Voli v Inglewood Shire Council (1963) 110 CLR; [1963] HCA 15 Texts Cited: Glass McHugh Douglas, The Liability of Employer's, second edition (1979) Hart & Honoré, Causation in the Law, second edition (1985) Category: Principal judgment Parties: Delwar Hossain (Plaintiff) Unity Grammar College Ltd (First Defendant) Binah Projecs Pty Ltd (Second Defendant) Five Star (Sixth Defendant) Elgas Limited (Seventh Defendant) Cohen and Associates Pty Ltd (Third Cross Defendant on first cross-claim) Representation: Counsel: A Black SC with E E Welsh (Plaintiff) D A Lloyd (First Defendant) M Fordham SC with N Condylis (Third Defendant) R Cavanagh SC with J Tat (Sixth Defendant) P Morris SC (Seventh Defendant) R N O'Neill (Third Cross Defendant on first cross-claim)

Solicitors: Young & Muggleton (Plaintiff) HWL Ebsworths (First Defendant) Holman Webb (Third Defendant) McCabe Curwoods (Sixth Defendant) Meridan Lawyers (Seventh Defendant) McDonnell Schroder (Third Cross-Defendant to the First Cross-Claim) File Number(s): 2013/401848

Judgment

1. The plaintiff, Mr Hossain, suffered very serious injuries in a gas explosion on 10 February 2010 at Unity Grammar College ("the College"), where he worked. The College is the first defendant. Mr Hossain had commenced employment on 4 May 2009 as caretaker and night watchman for the College. The other active parties are: the third defendant, Insurance Australia Limited; the sixth defendant, Five Star Universal Plumbing Pty Ltd; the seventh defendant Elgas Ltd; and the third cross-defendant Bernie Cohen and Associates Pty Ltd. These active parties will be referred to as "IAL", "Five Star", "Elgas" and "Cohen" respectively. Their role in the proceedings, for introductory purposes, may be described in these broad terms: 1. IAL insured a now deregistered company, Binah Projects Pty Ltd ("Binah"). Binah was the principal contractor for the construction of the College. Binah is named as the second defendant but proceedings are stayed by dint of Corporations Act 2001(CTH). IAL is sued under s 601AG Corporations Act; 2. Five Star is a plumbing and gasfitting contractor which performed work on the second stage of the building works at the College. Its work included gasfitting work from the one LPG gas tank on site but it did not perform the defective work which was the direct and proximate cause of the explosion; 3. Elgas supplied and installed the LPG gas tank and supplied the LPG gas used at the College; 4. Cohen was the private building certifier for the construction of the College.

Agreed facts

1. Certain important facts were agreed by all active parties (Exhibit B). I will summarise them in my own terms.
2. In 2007 and 2008 Binah was the principal contractor for the construction of the College. By agreement dated 21 June 2007 Binah engaged Enma Plumbing Pty Ltd ("Enma"), now also deregistered, uninsured and not a party to the proceedings, to carry out work including the installation of the LPG system ("the gas installation") at the College. When carrying out this work Enma installed what is referred to in the expert evidence as a second stage regulator, connected to and forming part of the gas installation, in the ceiling of Building "D". The placement of the regulator in that location was contrary to the instructions of the manufacturer of the regulator, the provisions of Australian Standard 5601-2004 and the provisions of the Dangerous Goods (Gas Installations) Regulation 1998 (NSW) (Repealed) ("DGR"). I add that the DGR was repealed by Gas Supply Amendment Regulation 2010 (NSW), made under the Gas Supply Act 1996 (NSW), with effect from 3 September 2010.
3. In November 2007, under a contract with the College, Elgas delivered a 2.4 KL LPG storage tank to the College. On or about 11 February 2008, Elgas supplied 2138 litres of LPG gas to the gas tank. Between February 2008 and February 2010, the gas appliances at the College were connected to the LPG installation installed by Enma and supplied with gas from the storage tank.
4. In 2009 Five Star was engaged to, and carried out, work on the second stage of the building works at the College which included the installation of a new gas line connected to the existing gas line installed by Enma at its tank end. I interpolate that other evidence establishes that Five Star quoted for this work on 6 July 2009 and had probably completed the quoted work by 20 November 2009 when the College made the third of three payments in 2009 to Five Star. I also add, it was intended that additional gasfitting work including the connection of appliances would be carried out on second stage of the building works at the College when construction advanced sufficiently. Five Star capped its line it at its output end.
5. By 10 February 2010, LPG gas, which had vented from the regulator, settled in the ceiling space of building "D" and into the floor below, and on that day, exploded. As a result of that explosion the plaintiff suffered severe personal injury.

Context

1. That "hard cases make bad law" is an aphorism well known to lawyers, the meaning and validity of which is often controversial. It comes to mind in the present case because, as I have indicated, none of the active parties responding to Mr Hossain's claim directly performed work which, by the act or omission of any of them, was the proximate cause and origin of the explosion and subsequent fire in which Mr Hossain received his severe injuries. Had Enma been a good common law defendant either in its own right or through adequate insurance none of the present responding parties might have been an essential party to the proceedings. I should add that I borrowed the expression "direct and proximate cause" from insurance law deliberately to emphasise the importance of Enma's negligence as a cause of the explosion and Mr Hossain's injury. Apart from the case against the College, the test for causation in negligence cases is found in s 5D Civil Liability Act 2002 (NSW). As against the College the common law subsists: s 3B(1)(f) Civil Liability Act.
2. However the concept of joint or several liabilities is one very familiar to lawyers, particularly in the law of negligence. In proceedings for the recovery of damages for personal injury, which are unaffected by the provisions of Part 4 Civil Liability Act, a plaintiff may bring an action against each tortfeasor liable in respect of the same damage and obtain judgment against each for the whole of her or his loss (subject to statutory modifications to the quantum of damages recoverable in a given category of case). She or he may not recover more than full satisfaction for his loss from one or more of the tortfeasors. The loss may be spread among the various tortfeasors liable in respect of the plaintiff's damage by orders for statutory contribution under s 5 Law Reform (Miscellaneous Provisions) Act 1946 (NSW) ("LRMPA"). This principle was expressed in the Scottish case of Grant v Sun Shipping Co. Ltd [1948] AC 549 at p 563 by Lord Du Parcq in the following way: …I regard it as a well settled principle that when separate and independent acts of negligence on the part of two or more persons have directly contributed to cause injury and damage to another, the person injured may recover damages from any one of the wrongdoers, or from all of them … If the negligence or breach of duty of one person is the cause of injury to another, the wrongdoer cannot in all circumstances escape liability by proving that, though he was to blame, yet but for the negligence of a third person, the injured man would not have suffered the damage of which he complains. There is abundant authority for the proposition that the mere fact that a subsequent act of negligence has been the immediate cause of disaster does not exonerate the original offender. His Lordship referred to Burrows v March Gas & Coke Co. (1872) LR7 Ex 96 where the defendant who supplied a defective pipe was not exonerated because "the immediate cause of an explosion which caused damage to the plaintiff was the negligence of a third party, a gasfitter who having been called in to look for the source of an escape of gas, searched for it with a lighted candle" (Grant at 563).

Circumstances of the plaintiff's injury

1. In his evidentiary statement of 10 July 2014 (Exhibit D), Mr Hossain described the circumstances of his injury of 10 February 2010 in the following terms (at p 4[20]): I had been undertaking traffic control duties at the school that morning because some new roadways had been installed over the holidays and the school was still settling in to a routine with students being dropped off in the morning. When I finished the traffic control work I had to return the signs and other equipment, which I had with me to the storeroom. The storeroom was located in D Building. My last memory is of entering the storeroom and switching on the lights. The next think I remember is that my body was on fire and after that I must have fallen unconscious.
2. There is a suggestion arising out of the evidence of Inspector Erika Groll, the lead investigator from the WorkCover Authority for the investigation of the explosion, that the explosion may have been caused by Mr Hossain lighting a cigarette. This suggestion arises out of the record she made at page 4 of her notebook (Exhibit F) that "cigarettes and lighter" had been found within the blast site. Her factual report (Exhibit C, p156) recorded that police and fire fighters were of the view "that the incident involved an LPG leak from the regulator and that the ignition source was unknown." The regulator was located above a toilet cubicle within or near the storeroom. Some of the pleadings on behalf of the defendants raise as a particular of contributory negligence that the plaintiff was lighting a cigarette (contrary to school rules) when the explosion occurred and that this was the source of ignition. The plaintiff was barely cross-examined about this and no defendant argued that I should make such a finding. Had lighting a cigarette been the ignition source, contributory negligence would not necessarily follow. Mr Hossain did not know and could not have known of the failure of Enma to vent the regulator to the atmosphere, or of the accumulation of released gas. He had noticed a "funny smell" in the storeroom the previous day, but this is nothing, in my view, to alert him to the great danger he faced.
3. Mr Hossain's evidence is that the cigarettes and lighter were in his pocket. I accept his evidence that the conflagration was immediately preceded by him turning on the light switch. Ignition by spark either in the light switch or in the fluorescent light fittings in the storeroom, according to the expert evidence, is a possible source of ignition (see for example Mr Ross Brown's report of 9 July 2014, p 10 [41]). In his report of 21 September 2015, Mr Peter Wenning (p 6 [19]) stated: It is likely that either a cigarette lighter or light switch ignited the gas/air mixture and caused the explosion. In my view, the more likely explanation is that the explosion was initiated by a spark when Mr Hossain turned on the light.

Additional primary facts relevant to liability

1. It is convenient to deal with some other matters of primary fact relevant to the decision on liability. There have been some difficulties with fact finding. The explosion occurred nine years ago. The contemporaneous documents are not complete or comprehensive and not all witnesses who might have been able to give direct evidence of relevant facts have been called. The omissions have been mainly from the defendant's side, it must be said. IAL did not call any witness from Binah. Mr Khalil Hafza, as I have said, is both the guiding mind of Binah and the chairman of the Board of the College. For what it is worth he is also a shareholder and director of the company which owned the land, Crescent Investments Australia Pty Ltd. As I state below, Elgas called only Mr Lewis Nottidge, its NSW Regional Manager and Manager of its Blacktown plant at the time of the explosion, now its National Technical Manager and a chemical engineer by profession.
2. Mr Nottidge had no direct involvement in the supply of the tank and the gas to the College. Nor was he in the direct chain of command of those who were. His evidence is very much in the abstract. He was copied into an email about the explosion from Ram Ramjas, Elgas's NSW Project/ Safety Manager (Exhibit F, p21A) on 11 February 2010. Mr Ramjas had attended the blast site on that day to meet with the WorkCover inspectors (Exhibit C, p 127; Exhibit F, p21-22). But Mr Ramjas was not called to give evidence. Mr Nottidge conceded that he had no direct knowledge as to the circumstances of the delivery of gas to the College. His "knowledge" was acquired by reading the email from Mr Ramjas (258.10 -35T). From paragraph 12 of his statement (Exhibit 7D1), it is also obvious he had read Mr Ramjas's email to WorkCover of 12 February 2010 as he picked up language directly from it. On Mr Nottidge's evidence, Mr Ramjas himself had no direct knowledge of whether the delivery of the gas on 2008 was for the purpose of testing and commissioning hot water heaters rather than for general use in the gas installation (258.30-35T).
3. The persons who had direct involvement with Elgas's contract with the College included Michael Marmara, the New Business Sales Manager, Marie Henriott, Customer Service Operator and Mr John Everingham, the tanker driver who delivered the gas. All of these people were still employed by Elgas as at the date of the hearing. None of them was called to give evidence. Neither Mr Hafza nor anyone else was called on behalf of the College (or Binah for that matter). And the certifier responsible for the construction work at the College employed by Cohen, Mr Trenton Jones, was not called. Of the persons on the defendants' side of the record who may be supposed to have had direct knowledge of any relevant fact matter or circumstance, only Mr Khaldoun Afiouni, a principal of Five Star was called to give evidence.

Expert witnesses

1. Four experts gave evidence in the proceedings: Mr Bill Armstrong, an experienced plumber and gasfitter; Mr Ross Brown (mentioned above), a hydraulic engineer; Mr Hamish McGill, a hydraulic consultant and Mr Peter Wenning (also mentioned above), a consultant in hydraulic services. In accordance with the Court's usual practice, the experts conferred and produced two joint reports, the first dated 8 May 2018, Exhibit H.1, and the second dated 30 July 2018, Exhibit H.1A. They also gave oral evidence concurrently (397 - 488T). There was almost complete unanimity amongst them. In Exhibit H.1 they explained that the second stage regulator installed in the ceiling of Building D was not in compliance with DGR and applicable Australian standards because it, and more importantly its "breather vent", was located internally within the enclosed roof space of the building. The experts agreed that the breather vent needed to be extended to the atmosphere. When answering question 6 in Exhibit H.1, the experts stated: The experts agree it is necessary to place the regulator in a position where it is either situated outside or vented to the external atmosphere for service requirements and safety reasons. The design of the regulator is such that there is potential for escape of gas, where there is a natural function of the regulator or there is rupture of the internal components of the regulator, it is pre-disposed to failure and/or discharge of gas from the relief port (sic).
2. From this and like answers to other questions in the joint reports, I draw the inference that best practice requires the regulator to be installed outside the building (see also the answer to 3(a) Exhibit H.1). But venting to the atmosphere by other means would have been satisfactory for safety reasons, even if not so satisfactory for meeting service requirements. It should be recorded that after the explosion, as part of the re-instatement works Five Star reinstalled a second stage regulator by affixing it to the external wall of Building D.
3. When asked at question 4 of Exhibit H.1 whether they agreed that venting the regulator to the atmosphere would have prevented the build-up of LPGas in the building and thereby the explosion, the experts' answer is recorded as follows: The experts agree almost certainly, yes if the regulator had been vented to the atmosphere, it is likely to have pre. (sic) It is obvious that the answer is incomplete. It is equally obvious that the question was being answered in the affirmative and, as a matter of interpretation, I understand the answer to be in the affirmative. I find that external venting would have prevented a build-up of gas and thereby avoided the explosion. These opinions were not challenged. The main point of the external positioning or venting of the regulator is to avoid a dangerous concentration of gas in a confined space. Ease of access for service purposes is probably of secondary concern. As venting to the exterior is satisfactory, in the opinion of the experts, I infer that a gasfitter can service a regulator in the roof space but access is not ideal.

Was a compliance plate attached when the gas was supplied?

1. An important issue of fact arose in relation to the legal liability of Elgas in the context of the requirements of cl 16 DGR. To provide context it is perhaps useful to set that provision out in full. It is in the following terms: 16 Supply of gas for use in gas installations (1) A person must not supply gas to a gas container that is connected to a gas installation unless a compliance plate is attached to the installation. Contravention of this subclause is an offence and is punishable in accordance with clause 33. (2) A person must not supply gas to a gas container that is connected to a gas installation if a defect notice is attached to the installation. Contravention of this subclause is an offence and is punishable in accordance with clause 33. (3) This clause does not apply to: (a) anything that is done in the course of the carrying out of gasfitting work, or (b) anything that is done in the course of the testing of a gas installation by a person by whom gasfitting work is being carried out or by the holder of an appropriate supervisor certificate, or (c) the supply of gas to a gas container that is connected to a gas installation that is installed in a vehicle, vessel or machine registered or licensed under the laws of any State, Territory or country outside New South Wales.
2. The question arises in this way. As is apparent, cl 16 prohibits a supplier like Elgas from supplying gas to a gas container or tank that is connected to a gas installation unless a compliance plate is attached to the installation. cl17 must also be borne in mind for it prohibits connecting a gas container to a gas installation unless a compliance plate is attached to the installation. And cl 15 prohibits a person from using a gas installation, in my view including by operating an appliance connected to it, unless a compliance plate is attached to the installation. Clauses 15 and 17 are subject to an exception in the same terms as cl 16(3). These exceptions should read with cl 11. That provision requires a gasfitter working on an installation to detach any compliance plate before the work is carried out and attach, inferentially, a new compliance plate after the work is completed; in the latter case, unless the certificate of inspection required under cl 10 DGR, which follows the completion of the work, indicates the installation is patently defective. By cl 11(2)(d) the required compliance plate must be attached in a conspicuous position at or near the point of connection between the tank and the installation.

Was the tank connected to the gas installation as at 11 February 2008

1. I turn then to the question whether the plaintiff has proved on the balance of probabilities that when the gas was supplied on 11 February 2008, Enma's gas installation was connected to Elgas's tank. There is no direct evidence either way proving or disproving this fact. What is known is that on 20 September 2007, Enma issued progress payment claim no. 2 to Binah (Exhibit C; p 111 - 112), a description of part of the work included in the claim was "gas service in ground complete". The progress claim was approved or certified by Binah (Exhibit C p 116). It is also clear from what I have said above (at [20]) that the "gas service in ground complete" had not been connected to the tank as at 23 January 2008 (Exhibit 7D6, Annexure B to Exhibit 6D1). The experts agreed that to perform the additional work connecting the in ground gas service to the tank, including the attachment of the Stage 1 regulator and the flexible pigtail pipe between it and the tank valve would take somewhere between "4 hours and a day" (421.25 - .45T). I bear in mind that some of the pipe work shown in Annexure B to Exhibit 6D1 is work performed by Mr Afiouni. Installing a single line for the connection to Enma's installation probably then would have been closer to the 4 hours than the day.
2. Elgas put to the experts during concurrent evidence that testing the installation and commissioning the appliances were one and the same thing. But what was made clear to me is that although the hard copper piping may be attached to the first stage regulator before attachment of a compliance plate, the actual connection of the first stage regulator to the tank by way of the flexible "pigtail" connection should not be undertaken until the compliance plate is attached. The connection of the first stage regulator to the tank "takes about 15 to 30 seconds to complete" (Mr McGill 422.45 - 423.10T). The experts described the process in their second joint report of 30 July 2018 (Exhibit H.1A). They agreed at page 2.2: We provide clarification on our understanding on the meaning of commissioning and testing. We understand testing to include (1) pressure testing of the installation for which LP gas is not required; and (2) visual inspection of the installation for defects. Commissioning is purging the gas line of air, filling the piping with LPGas and then establishing correct operation of the appliances. The sequence would be (1) testing and inspection, (2) certification, (3) supply of gas, (4) commissioning. From this it is clear that the experts view is that testing is something different from and anterior to commissioning. The experts rejected the idea that certification, that is to say, the attachment of the compliance plate only occurred after commissioning (423.30 - 424.5T). It was accepted that gas was needed for purging the line of air and for commissioning the appliances (424.20T).

Did Elgas supply the LPGas for testing and commissioning

1. On the findings I have made so far that is to say, that no certificate of inspection was issued to Binah (or the College) as required by cl 10 DGR, no compliance plate was attached to the installation in a conspicuous position near its connection with the gas tank in compliance with cl 11 DGR and the installation had been connected to the tank before 11 February 2008, it is strictly unnecessary to consider the third question of fact raised by Elgas which is whether the supply on 11 February 2008 was covered by the exception to cl 16(1) DGR found in cl 16(3) DGR. That is to say, that the supply of gas on 11 February 2008 was for something done in the course of carrying out of gasfitting work or in the course of testing the gas installation by Enma.
2. There may be a question about whether Mr Hossain or Elgas carried the onus in relation to engaging the exception in cl 16(3) DGR. At the very least Elgas would carry an evidential onus in regard to that matter which it has sought to discharge by its cross-examination of the experts and by the evidence of Mr Nottidge, to which I have already referred above. I have already said that there is simply no evidential foundation for the theory of the case that Enma had not completed the gas installation and connection of the tank to it before 11 February 2008. With respect, there is no evidential foundation, as I have said, for the hypotheses which the experts were asked to accept in relation to that matter and in my assessment of their evidence, which I have already detailed, I am satisfied that they were steadfast in their opinions that, from the gasfitter's point of view, no occasion would arise for requesting a delivery of gas before certification.
3. The evidence of Mr Nottidge pointing the other way is to say the least, exceedingly thin. I repeat that Mr Nottidge at the relevant time was the Regional Operations Manager for central New South Wales and the manager of the Elgas plant at Blacktown. However, he had no direct involvement in the contract with the College, the supply of the tank and the subsequent supply of the gas. The whole of his knowledge is derived from his review of documents. He had read Mr Ramjas's email to WorkCover of 12 February 2010. That is the document referred to in the first sentence the portion of his statement which I quote below ( Exhibit 7D1, [12] - [13]): I note from the email dated 12 February 2010 that the tank was initially filled to 2138L of LPG. I also note the statement by Mr Ramjas that the gas was to be used to test and commission instantaneous hot water heaters. I know of no regulation which limits the amount of gas which can be delivered for the purpose of testing and commissioning. The connection of the regulator and of the tank to the installation need not be made before the tank is filled with LPG as the fitting of the regulator and the connection to the installation can be carried out safely despite the tank having been filled with gas. Gas is sealed within the tank by valves which remain closed after the delivery of the LPG and until they are opened by the gasfitter. I take the reference to the regulator in this passage to be a reference to the first stage regulator at the "tank-end" of the installation, and not the second stage regulator involved in the gas blast. It should be observed straightaway that Mr Nottidge speaks of a need to test and commission instantaneous hot water heaters.

Legal issues

1. In Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420; [2009] HCA 48 a unanimous High Court of Australia said, of negligence cases generally, (at [11]): In considering each of the issues of duty, breach and causation, it is of the first importance to identify the proper starting point for the relevant inquiry. In this case there are two statutes which require particular consideration: the Civil Liability Act 2002 (NSW) and the Liquor Act (1982 (NSW)). If attention is not directed first to the Civil Liability Act, and then to the Liquor Act, there is serious risk that the inquiries about duty, breach and causation will miscarry. In the case at hand there are also two statutes which require particular consideration: the Civil Liability Act and DGR. The legal liability of each of the defendants other than the College is likely to be informed by both statutes. The liability of the College is, of course, not covered by the Civil Liability Act (s 3B(1)(f)). Its legal liability is to be determined by reference to ordinary common law principles. But those principles in turn will be informed, as the High Court indicated in Adeels Palace by the provisions of DGR.
2. I have already said (at [51] above) that the intent and purpose of DGR is to closely regulate gas installations and their use by imposing an interconnected and interdependent network of obligations on gasfitters, users of gas installations and appliances and suppliers.
3. The provisions relevant to the present case are found within Part 2 DGR which is entitled "Fixed, mobile and portable gas installations". Divisions 1 and 2 are applicable. To provide an overview, cl 7 requires gas fitters to be qualified. Clause 8 requires gas fitting work to comply with certain standards. We are concerned here with a fixed (LP Gas) installation which must comply with AS 1596: LP Gas storage and handling, as in force from time to time. Clause 9 requires a gasfitter, immediately after completion of gas fitting work on a gas installation, in respect of new work to inspect containers, regulators, and appliances connected to the installation and test the whole installation for patent defects. In the case of work comprising the alteration, extension or repair of an existing gas installation, the gasfitter must inspect containers, regulators and appliances connected to the part that has been altered, extended or repaired, and must test the whole installation for patent defects.

Breach of statutory duty

1. As will become apparent when I analyse the liability of each of the defendants and Cohen, in some cases Mr Hossain for his claim and the various defendants for their cross-claim rely upon an asserted breach of individual provisions of DGR as founding a liability for the tort of breach of statutory duty, as opposed to statutory negligence as referred to in s 5A Civil Liability Act. In a general way the arguments proceed on the basis that the specific obligations imposed by individual provisions of the Regulation do not depend upon negligence so as to engage s 5A Civil Liability Act. Rather they turn on their specific terms.
2. The question when a private right of action for a breach of a statutory provision arises was discussed by Dixon J (as the Chief Justice then was) in O'Connor v SP Bray Ltd (1936) 56 CLR 467 at 477. His Honour said: It is a question of some difficulty whether a civil remedy is given to a person injured in consequence of the breach of [a clause and a regulation]. Such a person may, of course, maintain an action of negligence and rely on the failure to comply with the statutory regulations as evidence of negligence. But it is a different question whether the enactment itself confers a distinct cause of action. The received doctrine is that when a statute prescribes in the interests of safety of members of the public or a class of them a course of conduct and does no more than penalise a breach of its provisions, the question whether a private right of action also arises must be determined as a matter of construction. The difficulty is that in such a case the legislature has in fact expressed no intention upon the subject, and an interpretation of the statute, according to ordinary canons of construction, will rarely yield a necessary implication positively giving a civil remedy. As an examination of the decided cases will show, an intention to give, or not to give, a private right has more often than not been ascribed to the legislature as a result of presumptions, or by reference to matters governing the policy of the provision, rather than the meaning of the instrument. Sometimes it almost appears that a complexion is given to the statute upon very general considerations without either the authority of any general rule of law or the application of any definite rule of construction. … In the absence of a contrary legislative intention, a duty imposed by statute to take measures for the safety of others seems to be regarded as involving a correlative private right, although the sanction is penal, because it protects an interest recognised by the general principles of the common law …. Whatever wider rule may ultimately be deduced, I think it may be said that a provision prescribing a specific precaution for the safety of others in a matter where the person upon whom the duty laid is, under the general law of negligence, bound to exercise due care, the duty will give rise to a correlative private right, unless in the nature of the provision or from the scope of the legislation of which it forms a part, a contrary intention appears. The effect of such a provision is to define specifically what must be done in furtherance of the general duty to protect the safety of those affected by the operations carried on.

The liability of the College

1. The College is Mr Hossain's employer and the occupier of the school. It is sufficient to focus upon the relationship of employer and employee between the College and Mr Hossain. Mr Hossain does not rely upon the tort of breach of statutory duty against his employer (5FASOC). He is apparently content to bring his action in negligence.
2. It is not in doubt that the College owes Mr Hossain a non-delegable duty to exercise reasonable care to avoid exposing him to unnecessary risks of injury: Czatyrko v Edith Cowan University [2005] HCA 14; 79 ALJR 839 at [12]. The duty extends to the provision of a safe place of work. In Cotter v Huddart Parker Ltd 42 SR (NSW) 33 at 37 Jordan CJ formulated the employer's duty in respect of the safety of the place of work as a duty to make "the place of employment … as safe as the exercise of reasonable skill and care will permit." Although reversed on appeal to the High Court in Huddart Parker Ltd v Cotter (1942) 66 CLR 624; [1942] HCA 34 on other grounds, the Chief Justices formulation of the duty was not called into question: Glass McHugh Douglas, The Liability of Employer's, Second Edition (1979). His Honour clearly formulated this aspect of the employer's duty as corresponding with the formulation of the duty owed to contractual entrants by McCardie J in MacLenan v Segar [1917] 2KB 325 at p 333.
3. This formulation dovetails with the explanation of the non-delegable nature of the employer's duty of care given Mason P in TNT v Christie (2003) 65 NSWLR 1; [2003] NSWCA 47 at [47] and [48]: [47] The authorities cited … demonstrate that, in the realm of negligence, (a) a non-delegable duty of care will (like a duty based on vicarious liability) be imposed on categories of persons regardless of personal fault on their part in the circumstances giving rise to the plaintiff's injury; but (b) the plaintiff must prove that damage was caused by lack of reasonable care on the part of someone (not necessarily the defendant) within the scope of the relevant duty of care. [48] The second requirement, namely that the plaintiff's injury occur within the scope of the special relationship, is frequently passed over because the requirement is clearly satisfied in the particular case. But the issue cannot be ignored and it has significance in cases such as the present. (My emphasis.)
4. It is to be borne in mind that TNT v Christie was a case concerned with the employer's duty to provide safe plant and equipment. The formulation of the content of the duty to exercise reasonable care to provide safe premises in the terms expressed by Jordan CJ emphasises the non-delegable or personal nature of the duty.

The legal liability of Binah and IAL

1. As I have said IAL is sued under s 601 AG Corporations Act 2001 (Cth). That provision is in the following terms: A person may recover from the insurer of a company that is deregistered an amount that was payable to the company under the insurance contract if: (a) The company had a liability to the person; and (b) the insurance contract covered that liability immediately before deregistration. The only issue for determination in this case is whether Binah had a liability to Mr Hossain. There is no issue that the insurance contract issued by IAL to Binah covered any liability it is adjudged to have had immediately before its deregistration. It is convenient therefore to speak in terms of Binah's liability rather than the liability of IAL.
2. Mr Hossain argues that Binah owed him a duty of care in accordance with the principles enunciated in Caltex Refiners (Qld) Pty Ltd v Stavar (2009) 75 NSWLR 649; [2009] NSWCA 258. Mr Hossain identifies the risk of harm as a risk of injury from the gas explosion if the gas installation was not constructed in accordance with DGR and applicable standards. Given the potential dangers associated with LPG if precautions are not taken, Mr Hossain argues for the purpose of s 5B Civil Liability Act that the risk of an explosion from accumulating gas was reasonably foreseeable and not insignificant. It is submitted that a reasonable person in the position of Binah would have taken the precautions of: (a) engaging a competent sub-contractor to construct the gas installation; and (b) ensuring that the gas reticulation system (gas installation) was certified by a competent gasfitter as compliant with DGR.
3. It is submitted that the evidence shows that Enma was in fact incompetent. Reliance, in particular, is placed upon the location of the second stage regulator in the ceiling space above Mr Hossain's storeroom, consideration that at least one of two other second stage regulators were identified as having been improperly installed by reason of the failure to vent to the atmosphere, and the failure of Enma to certify its work by providing Binah with the certificate of inspection as required and attaching the compliance plate on the installation in a conspicuous location near its connection with the gas tank. Reliance in particular was placed upon the opinions of the experts (401 - 403T) that installation of the offending second stage regulator demonstrated incompetence.

The liability of Five Star

1. Mr Hossain says that Five Star contravened clauses 9, 10 and 11 DGR by: 1. failing to confirm the presence of a compliance plate before commencing gasfitting work on the gas installation; 2. failing to adequately inspect the part of the gas installation that Five Star altered and extended and failing to test the whole installation for patent defects; and 3. failing to furnish a certificate of inspection and attach a compliance plate after the completion of its gasfitting work in November 2009.
2. Five Star's quote to the College (Exhibit C, p 133) provides an itemised list of the works that Five Star were engaged to undertake. The work included supplying sewerage and sanitary drains, supplying "domestic water as per the plan" supplying and installing a "fire hydrant & landing valves" and the supply of gasfitting works for stage 2 of the College development. It may be important to record that the description of the gasfitting work in the quote is, "Supply and & install Gas service from gas tank to HWH as per plan." The total value of the quote was $115,500. The quote included a sum for re-locating Elgas's gas tank, but all parties accept that work was never performed. Only the gasfitting work is impugned.

Issues

1. Mr Hossain's claim against Five Star is framed in negligence and breach of statutory duty for contravention of cl 9 DGR. The failure to comply cl 11 is relied on as a particular of negligence.

Case against Five Star

1. A significant factual issue in the case against Five Star concerns whether Five Star's gasfitting works were completed when it finished work on the site in November 2009. This issue arises because of the description of its gasfitting work in its quote which implies the connection of the installation to appliances, if "HWH" means hot water heaters. There is no real dispute that when Five Star finished in November 2009, as I have said above, it had run the installation to the new building site, attached a valve and capped the piping as the building works had not progressed sufficiently to continue the installation into the building. As the evidence quoted below shows it had also charged and been paid for the full amounted quoted. The issue is significant because "completion of gasfitting work" is a factor which triggers the cl 9 DGR obligations.
2. Clause 9 is in the following terms (my emphasis): 9 Testing for patent defects Immediately after the completion of gasfitting work on a gas installation, the person responsible for the carrying out of the work: (a) in the case of work comprising the installation of a new gas installation: (i) must inspect all gas containers, gas regulators and gas appliances connected to the installation, and (ii) must test the whole installation for patent defects, or (b) in the case of work comprising the alteration, extension or repair of an existing gas installation: (i) must inspect such part of the installation as has been altered, extended or repaired, and (ii) must inspect all gas containers, gas regulators and gas appliances connected to such part of the installation as has been altered, extended or repaired, and (iii) must test the whole installation for patent defects. Contravention of this clause is an offence and is punishable in accordance with clause 33.
3. As is apparent cl 9 imposes obligations upon gasfitters who install new work or alter, extend or repair existing gas installations immediately after the completion of gasfitting work on a gas installation. As I have indicated these terms are defined in the DGR dictionary: see [52]; [59]-[64] above.
4. The completion of gasfitting work on an existing installation creates an obligation to inspect such part of the installation as has been altered, extended or repaired which extends to inspection of the containers, regulators and appliances connected to such part of the existing installation as has been altered, extended or repaired. As expressed in cl 9(b)(ii) the gasfitter must inspect all gas container, gas regulators and gas appliances connected to such part of the installation as has been altered, extended or repaired. A claim for breach of cl 9(b)(iii) was not pressed (307.45T).

More of Mr Afiouni's evidence

1. Mr Afiouni was the only individual called to give evidence who actually worked on the installation. It was submitted he should be considered "an honest and impressive witness" who certainly "explained his understanding of the regulations or rules, as he described them…and explained in some detail why he did not consider he was obliged to do the things that were put to him." It was submitted "that his evidence should be given considerable weight" (written submissions [10]). I found him to be a forthright witness who certainly engaged with the process of giving evidence. I found him to be sincere in his evidence. As I will demonstrate his evidence at times betrayed a lack of understanding of his obligations under DGR.
2. Mr Afiouni gave evidence that he had 16 years' experience working with LPGas as at the relevant time. Regarding the nature of the arrangement with the College Mr Afiouni said that during the engagement he worked closely with Mr Wahib Shanferly, who appears to be his business partner. It appears Mr Shanferly prepared Five Star's July 6 2009 quote (Exhibit 6, p 134). Mr Afiouni said in evidence that there was a general division of duties where Mr Shanferly would do most of the "quoting work" and Mr Afiouni would do most of the "actual work" (125.20T).

Relevant Gasfitting work completed by 30 November 2009

1. It is uncontroversial that the gas installation works I have described were undertaken at the College by Five Star by 30 November 2009.
2. Regarding the actual gasfitting work completed, Mr Afiouni agreed that it involved, "digging a line, [and] laying pipe work from the second stage buildings to the tank" (131.05T). Mr Afiouni said that after discussion with Mr Hafza the plan was "to run a line to the existing (Elgas) tank, put in a T connector below the (existing first stage) regulator and then run gas through to the second stage" of the construction of the school (131.35T). Mr Afiouni said that by November 2009, the gas was running back from where it was originally installed.
3. The schedule of progress payments made to Five Star (p 135 of Exhibit C) shows that by 30 November 2009 the full amount of $115,500 had been paid to Five Star. This document was shown to Mr Afiouni during cross-examination on behalf of Elgas: (136.10T): Q. MORRIS: Looking at that document, firstly, what is your present recollection as to the stage you had reached by the time you had been paid all that money? A. AFIOUNI: That would say that's pretty much finished Q. MORRIS: Is that the best of your recollections now? A. Well, pretty much.
4. Mr Afiouni agreed that he could access Elgas's tank either during the week or on the weekend (109.45T) to perform his work. And he agreed that this could have been done even before the job had started when it was being priced (109.45T).

Five Star's general duty of care

1. Voli v Inglewood Shire Council (1964)110 CLR 74, establishes that a building professional or tradesman who undertakes work on the construction of a building will owe a duty of care to future users of the building to exercise reasonable care to eliminate unnecessary risks of personal injury arising from the work they perform. This is the duty owed by Five Star to Mr Hossain. The following extract from Voli at (p 85) has application (Windeyer J, Dixon CJ and Owen J agreeing): What an architect must do to avoid liability for negligence cannot be more precisely defined than by saying that he must use reasonable care, skill and diligence in the performance of the work he undertakes… …neither the terms of the architect's engagement, nor the terms of the building contract, can operate to discharge the architect from a duty of care to persons who are strangers to those contracts. Nor can they directly determine what he must do to satisfy his duty to such persons. That duty is cast on him by law not because he made a contract, but because he entered upon the work. Nevertheless his contract with the building owner is not an irrelevant circumstance. It determines what was the task upon which he entered. …… An architect is not ordinarily liable because someone falls down in the building and is injured. He may be if the building falls down and someone is injured.

Object of regulatory framework informs Five Star's duty

1. By undertaking work for the College, I am satisfied the duty of Five Star Plumbing extended to include a class of people including Mr Hossain lawfully using the school who were vulnerable to risks arising out of non-compliance with DGR in the sense they could not themselves take precautions to protect themselves against such risks. Had they turned their minds to such matters they would have expected gasfitting work to have been performed competently, safely and in accordance with DGR. Five Star owed to Mr Hossain a standard of care consistent with that of a reasonably competent gasfitter familiar with the requirements of DGR. Mr Hossain submitted that the risk of serious danger was reasonably foreseeable and not insignificant.

Case in negligence

1. As refined by the trial process Mr Hossain's case against Five Star was that he should have looked for the compliance plate required by cl 11 before starting any work on the installation even if only for the purpose of detaching it. He would then have noticed its absence which should have operated as a red flag suggesting the gas installation on which he was required to work may not be compliant in the sense of being free from patent defects. He should have drawn the matter to Mr Hafza's attention. Although Five Star's contract seemed to be with the school rather than Binah, from Mr Afiouni's evidence ir is apparent he dealt with Mr Hafza in the performance of his work. Mr Hafza would probably have requested that Mr Afiouni undertake such testing and inspection as was required to either establish compliance or identify patent defect. In the case of the latter Mr Hafza would have authorised its rectification. After the explosion he engaged Mr Afiouni to inspect the whole installation including parts not affected by the blast.
2. The experts in their concurrent evidence all agreed that it simply was not industry practice or standard for a reasonably competent gasfitter to commence work without detaching a compliance plate and without issuing a certificate of inspection for works completed. This was said to have amounted most squarely to a breach of Five Star's Duty informed by cl 11 and the objects of the regulatory framework.
3. Mr Hossain also argued, effectively in the alternative, that when Five Star's work concluded in November 2009, they had completed gasfitting work triggering obligations under cl 9, 10 and 11. As its work was on an existing installation cl 9(2) was engaged and Five Star, under cl 9(b)(ii), was required to inspect all of the components and fixtures "downstream" from its work near Elgas's tank as everything including the second stage regulator was connected to the part of the installation they had altered or extended.

Mr Afiouni's evidence about compliance plates

1. Mr Afiouni said that he generally worked on the basis of his understanding that if a filled gas-tank was present than it necessarily followed that a certificate of inspection must have been issued and a compliance plate attached. This was why he did not look for the compliance plate before commencing work. Mr Afiouni spoke about his understanding of this issue: (139.40T): AFIOUNI: Look, for my experience, I just - I will tell you from my experience. The way it works is you cannot be supplied any LPG gas without a certificate. No gas company can give you LPG gas without a certificate. That certificate is your compliance plate, so when you've got a gas bottle there that's there, you assume straight away that there is a compliance plate there because the gas company can't supply you gas without the compliance plate. That's rule No 1. I have been doing this for over 20 years and it's never changed. When I rock up and I see an LPG bottle there, I'm assuming that it's got a compliance plate because you cannot get a gas bottle there without a compliance plate.
2. Mr Afiouni was asked if he would have been "totally unconcerned" if he had gone and looked for a compliance plate attached to the installation at the point closest to the tank, and it wasn't there. He replied: (140.05T): …a compliance plate can go missing, sometimes they fade, sometime you have to put a new one because of the sun - they get faded. Sometimes the come off. I mean its not something when I go to a new job to connect, that I need to go there an actually have a look and see if there is a compliance plate there.
3. In respect of the compliance plate, Mr Afiouni acknowledged that there was not a compliance plate on the gas works before he started on it and that he did not put a compliance plate on until after being requested to do so by WorkCover on 17 June 2010. At (142.35T): Q. In the body of your statement you say that you would have put a compliance plate on it at the same time; is that right? A. Um, that certificate was given after the accident by - Workcover required us to go through and assess the school, and that's when this certificate was given. Q. So Workcover required you to go over the whole school? A. Yes. Q. And make sure everything was compliant? A. That's right. Q. Did you then fit a compliance plate yourself? A. Yes. Q. Have you been back there since then? A. I haven't been back. I went back after I got a phone call that the compliance plate was missing again and I had to go back and put another one on.

Finding of negligence

1. Contrary to my reading of DGR, Mr Afiouni was not of the view that constructing the new line, constituted an alteration or extension of the existing gas installation. (157.25T) For the purposes of cl 9, 10 and 11 of the regulations it appears that several obligations arose which were not met by Mr Afiouni immediately after finishing his gasfitting work on the existing gas installation. Despite his understanding I find that on the balance of probabilities that he had indeed completed gasfitting work by 30 November 2009. Although he had not connected the appliances to the altered and extended installation as originally contemplated, he had taken the work as far as he could and sealed it. He had charged the full price quoted and he did not intend to return to the job for some time. In the event he did return until he was called back after the explosion. It is not within the contemplation of DGR that the work can be left in abeyance for some months without the requirements of cll 9, 10, and 11 being observed. These required testing, inspection, the provision of a certificate of inspection and, if appropriate the attachment of a compliance plate.
2. This work consisted of altering and extending an existing gas installation. He was thus required to test and inspect the part of the installation that he altered and extended, which I accept he did. But compliance with cl 9(b)(ii) required him to inspect the connected regulators, appliances and containers, which he did not.
3. The observation of the requirement for the gasfitter to inspect the gas installation under cl 9(b)(ii) enlivens a subsequent obligation to provide a certificate of inspection under cl 10 to the owner of the installation or the person in control of the site. At this time this was probably the College on both counts rather than Binah. Assuming the inspection demonstrated the installation was free from patent defects, an obligation to provide a compliance plate under cl 11, followed. Of course had he carried out the required inspection after completion of his work he would have detected the patent defect presented by the second stage regulator in the roof space. In that his certificate of inspection would have identified the patent defect an additional copy would have been provided to Elgas. In this event he would not have been authorised to attach a compliance plate under cl 11 lest a subsequent gasfitter, user or supplier be misled: cf cll 12(1)(b) and 18. Clause 12 would require an attachment of a defect notice to the regulator. Any existing compliance plate must be removed, unless the defective regulator could be isolated from the installation. I think it implicit in the evidence that this could not be done.

Breach of Five Star's statutory duty

1. Breach of statutory duty is pursued against Five Star only in respect of cl 9(b)(i) and(ii). Both of these sub-clauses primarily stipulate a safety precaution that obliges a duty to inspect certain components of the gas installation and its connected parts.
2. I have already made a finding of fact that Five Star had completed its gasfitting work by 30 November 2009 so much is apparent based upon both the schedule of progress payments at (Exhibit C, p 135) and the evidence of Mr Afiouni who confirmed during cross-examination with Mr Morris that to the best of his recollection the works had been completed (136.10T). As I have pointed out this finding triggers the obligations under cl 9. I have found for the purpose of the law of negligence that Five Star complied with cl 9(b)(i) but not cl 9(b)(ii).
3. Should there be any remaining question about whether the gasfitting work had been completed it is in my view resolved by reference to the following evidence. Mr Afiouni reaffirmed my view of the evidence during additional cross-examination from Mr Black regarding the completion of works issue. Mr Afiouni was steadfast that the works quoted to the College were completed by November 2009 and any works thereafter were going to require a new price (148.40T): Q. BLACK: Mr Afiouni when you issued the quotation to Unity Grammar, that was to carry out the work that you identify as being the work associated… A. AFIOUNI: Yes. Q. BLACK: Had you finished that work by November 2009? A. AFIOUNI: That's what the statement says. Yep. Q. HIS HONOUR: Subject to connecting the appliances? Q. BLACK: Is that right, subject to connecting the appliances? A. That's right. Q. BLACK: Was that included in the same price? A. AFIOUNI: No Q. BLACK: You were going to charge extra money before you did-- A. AFIOUNI: Yeah because I didn't know what was happening there. Q. BLACK: The work that you were paid for by November 2009, was all the work that you had quoted for? A. AFIOUNI: That's right
4. Mr Afiouni gave evidence (149.20T) concerning the nature of the gasfitting work he had undertaken and how precisely the gas installation he had quoted for, worked on and altered, connected to the various components of the existing installation, a consideration that is critical in light of cl 9(b)(ii) which imposes the statutory duty to inspect all appliances, containers and regulators connected to the installation that has been altered.

Breach

1. To the extent that Mr Afiouni undertook work that altered an existing gas installation, it must be found under cl 9(b)(ii) that he was under a statutory duty to inspect all containers, regulators and appliances connected to the installation he had worked on, however Mr Afiouni denied he was under any obligation to inspect any of these components whatsoever after completing his gasfitting work: (156.45T). Failing to inspect under cl 9(b)(ii) is a breach of DGR. I accept that cl 9(b)(ii) is concerned with the safety of persons in proximity to gas installations and specifies a particular precaution which supports an interpretation giving rise to a correlative private right of action for the benefit of those within the ambit of its protection including Mr Hossain.
2. I accept the submission of Mr Hossain that if Five Star had inspected the existing installation as required, the second stage regulator responsible for the discharge of gas which led to the explosion would have been detected. And the likelihood is that either the regulator would have been rectified, or the system defected and not used until rectified, and in either case the explosion would not have occurred on the balance of probabilities.
3. At different times it has been submitted that the second stage regulator responsible for the explosion was inaccessible because it was in a ceiling space. I am not satisfied that the ceiling space was in fact inaccessible. The evidence about that is sparse. The only direct evidence is that under cross-examination by Five Star of Inspector Groll she agreed that so far as she could determine there was no access point like a manhole cover through which anyone could have climbed into the ceiling (71.10T). However, it emerged in cross-examination by Elgas that as a result of the explosion, "the ceiling had completely fallen down, particularly in that storeroom area (76.30T). There is simply no evidence to suggest that there was no manhole through which entry could be gained to the ceiling space to inspect and maintain services located there. There was no reason to suppose that, as is common in commercial buildings, that the ceiling panels were not removable to provide access to services.
4. As such Five Star plumbing are liable for the harm suffered to Mr Hossain under a statutory breach of cl 9(b)(ii), this gives rise to a private right of action.

The liability of Elgas

1. The plaintiff sues Elgas in negligence and for breach of statutory duty. The latter duty is the duty imposed by cl 16 DGR. Mr Hossain argues that Elgas owed a duty to the plaintiff to take reasonable care to ensure that the gas installation to which it supplied gas was one that was reasonably safe for persons who were lawfully on the grounds of the College. The risk of harm is said to be that if the gas installation was not appropriately constructed, gas might escape and explode causing injury. It is submitted that the risk was foreseeable and not insignificant for the purpose of s 5B Civil Liability Act. Mr Hossain argues that Elgas should have taken the precaution of ensuring that the gas installation was certified as compliant with the relevant standards and DGR before filling the tank. In making this submission, Mr Hossain says that the reasonable precautions are informed by the regulatory framework provided by DGR. As there was no compliance plate affixed to the gas installation when gas was supplied on 11 February 2008, Elgas should have refused to supply the gas until it received confirmation in the form of a Certificate of Inspection from a reputable qualified gasfitter and the required compliance plate was attached to the gas installation near its connection with the tank.
2. I have set out the terms of cl 16 DGR above, at [21]. And I have found that the gas tank was connected to the gas installation, the gasfitting works had been completed, and that the supply was not covered by the exception in cl 16(3).
3. I have set out the legal principles, the application of which will determine whether breach of a regulation will give rise to a correlative civil right of action at [65] - [69] above.
4. I have dealt in some detail already with Elgas's submissions as to the facts that should be found and I have with respect rejected them. Most of Elgas's forensic effort was directed to fighting the case on those factual grounds. It seemed to accept in submissions that it had a duty of care which did not extend beyond the delivery of the gas tank and the supply of gas to the tank. Presumably this related to the careful performance of that work and that work only. It disputed that a breach of cl 16 DGR, even if established, confers a correlative private cause of action upon Mr Hossain.
5. Assuming it had been negligent or in breach of statutory duty, Elgas argued that its negligence was not a necessary condition of the harm suffered by Mr Hossain for the purpose of s 5D Civil Liability Act. Moreover, given what it characterised as the intervening negligence of Five Star it submitted that there was a novus actus interveniens severing the chain of causation between its breach, if any, and the harm suffered by Mr Hossain. Accordingly, the scope of its liability should not extend to the harm suffered.

The legal liability of Cohen

1. As I have pointed out already, Cohen's role in the matter was that of principal certifying authority under the provisions of the EPA for at least the first stage of the construction of the College, which included the erection of Building D. It remains in the proceedings in its capacity as the third cross defendant to the College's Amended Statement of First Cross Claim. That document picks up by incorporation and pleads against Cohen the averments made by the plaintiff in his Second Further Amended Statement of Claim. I repeat that the plaintiff no longer presses a claim against Cohen nor does any other defendant by way of cross-claim.
2. Cohen was originally sued as the Fifth Defendant. The averments made against Cohen in the Second Further Amended Statement of Claim are found at paragraphs 7, 8 and 22 - 27. The sole cause of action relied upon is in negligence and the particulars of negligence appear at the foot of paragraph 27.
3. From this pleading, the case against Cohen is that it was a corporation which provided professional certification services to the building industry and that at all material times it was responsible for inspecting the works performed by Binah and Enma and certifying that those works complied with the relevant building and Australian standards and were constructed in accordance with good and safe building practices and had been carried out in a workman-like manner.
4. It is said that the certification works, presumably of Cohen, were undertaken prior to the commissioning of the premises for the use as school in 2008. As things have transpired, it erroneously avers that Binah and Enma certified the LPG installation as compliant, and that Cohen certified the premises as complying with all relevant standards when a reasonable inspection would have disclosed that the LPGas regulators in three locations were incorrectly installed and did not comply with applicable Australian standards. It is also asserted that the incorrect installation of the second stage regulators posed a significant risk of harm to persons on the school premises including students, employees and visiting members of the public. It is asserted that a reasonable principal certifying authority "would have checked the LPGas tank was correctly installed and could be operated safely". I interpolate immediately there is no issue about the safety of the gas tank, per se.

Statutory contribution

1. In the event I have found each of the College, Binah (IAL), Five Star, Elgas and Cohen legally liable for the plaintiff's injuries. As I have already said, so far as Cohen is concerned, its participation in the proceedings, although it had initially been a defendant, was only on a cross-claim maintained against it by the College. Each of the other four responding parties have cross-claims claiming contribution one from the other. I have found each of the responding parties liable in negligence. In addition I have found Five Star and Elgas liable for breach of statutory duty. On my reading of the pleadings, Mr Hossain did not proceed against the College for breach of statutory duty under cl 15 DGR, but for the same reasons as I expounded in respect of Elgas's liability for breach of the statutory duty imposed under cl 16 DGR, the College would have been liable for a breach of cl 15. Clause 15 has been relied upon by the some of the cross-claimants against the College in its capacity as a cross-defendant.
2. The principal considerations governing the question of contribution amongst tortfeasors are well settled. The evaluation of comparative responsibility is a quasi-discretionary one calling for a broad assessment of the relative contribution of each tortfeasor in which the principal relevant considerations are, first, the degree of departure of each tortfeasor from the standard of reasonable care, and secondly, the relative causative potency of the specific act or omission of each resulting in legal liability for the plaintiff's injuries.
3. It is impossible to overlook the consideration in this particular case that none of the tortfeasors, as I have found them to be, is the party primarily responsible for the explosion that caused Mr Hossain's injuries. As I have laboured far too often in giving these reasons that party is Enma, which is deregistered and uninsured. Given that the responsibility of each of the remaining tortfeasors is in a factual sense "secondary" it is very difficult to differentiate them without splitting hairs or descending into an exercise in unreal and false precision.
4. To my mind, the broad requirements of justice in the case suggests that liability should be "apportioned" on a pro rata basis. That is to say, the driving consideration of just and equitable contribution led me to the conclusion that each of the remaining tortfeasors should be equally liable to the Mr Hossain, and as amongst themselves, for the damages payable, allowing, in due course, for the requirements of Div 3 of Part 5, and s 151Z(2) Workers Compensation Act 1987 (NSW).

Cross claim under 151Z(1)(d)

1. By paragraph 11 of the Amended Statement of First Cross Claim, the College has pleaded an entitlement to a statutory indemnity under the provisions of s 151Z(1)(d) WCA from each of the cross defendants in respect of payments of workers' compensation it has made to, for or on behalf of Mr Hossain.
2. As I have found the College negligent, there is now a considerable body of authority which establishes that a negligent employer is not entitled to the benefit of the s 151Z(1)(d) indemnity: Public Transport Commission of New South Wales v J Murray-Moore (NSW) Pty Ltd (1975) 132 CLR 336; I & J Foods Pty Ltd v Bergzam Pty Ltd (1997) 14 NSW CCR 486; CSR Timber Products Pty Ltd v Weathertex Pty Ltd (2013) 83 NSWLR 466; [2013] NSWCA 49 at [43]; Endeavour Energy v Precision Helicopters Pty Ltd (No 2) [2015] NSWCA 357 at [43]; South West Helicopters Pty Ltd v Stephenson [2017] NSWCA 312; (2017) 327 FLR 110 at [172].
3. For the reasons explained by Basten JA in Precision Helicopters the employer cannot call in aid s 151Z(2)(e) because the alternative conditions for the special operation of s 151Z(1)(d) expressed the opening words of paragraph (e) of s 151Z(2) have not been satisfied. The first alternative has not been satisfied because Mr Hossain did take proceedings against his employer, and the second alternative has not been satisfied because the occasion has not yet arisen for Mr Hossain to choose whether he will accept satisfaction of the judgment to be entered against the College as his employer, or not. Section 151Z(2)(e) gives s 151Z(1)(d) partial operation only where both the employer, and here, one or other of the other tortfeasors would be legally liable to pay Mr Hossain damages. In Precision Helicopters at [48] Basten JA said: Unless the opening words to paragraph (e) are satisfied [the employer] has no entitlement to indemnity given that it is liable to the plaintiff in damages

Quantum

1. I will repeat, that as against the College, the plaintiff's damages are to be assessed in accordance with the provisions of Div. 3 of pt. 5 WCA. There is no doubt that the plaintiff's whole person impairment resulting from his injuries exceeds the "at least 15 percent" threshold for the purpose of s 151H WCA. The damages payable by Binah (Through IAL), Five Star, Elgas and to which Cohen may have to contribute are required to be assessed under Part 2 Civil Liability Act. In respect of Cohen I appreciate that as I have said above, it is only here formally as the third cross defendant to the College's first cross-claim. However, for the reasons I have explained, the question of the liability and relative responsibility of each of the responding parties has been fully litigated and I am empowered to order contribution amongst all of the tortfeasors in accordance with the provisions of s 5 LRMPA. Cohen's liability to contribute is not limited to a liability to contribute to the work injury damages only. I should say, given I have found each of the tortfeasors equally liable were I wrong in my appreciation of Cohen's exposure, as between Cohen and the College, as I have assessed their responsibility equally, Cohen would be liable to contribute 50 percent of the work injury damages I will assess.
2. There are few issues of fact amongst the parties as to the nature, extent and severity of Mr Hossain's injuries and their consequences caused by the negligence of the tortfeasors.
3. To illustrate the severity of his injuries and disabilities for the purpose of WCA Mr Hossain was assessed at having a 71 percent whole person impairment for the disfigurement and physical limitations resulting from his burn injuries, especially involving his right and left arms, scarring of his body (40 percent) and to a degree to his face. Dr Brian Bourke has diagnosed him as suffering from Chronic Post-Traumatic Stress Disorder and a Major Depression. Utilising the WorkCover guidelines for permanent impairment for psychiatric injury, Dr Bourke concluded that Mr Hossain suffers from 26 percent whole person impairment in respect of those psychiatric injuries alone. Dr Sylvester Fernandez diagnosed acoustic trauma to both ears and resulting loss of hearing due to the blast of the gas explosion. He described the hearing loss as severe, involving tinnitus, and assessed his whole person impairment in respect of that injury at 10 percent. Now I appreciate that those figures exceed 100 percent and of course would need to be evaluated together on a combined table. However, those results illustrate the point that the Mr Hossain's injury was near catastrophic.

The plaintiff's background

1. Mr Hossain was born in Bangladesh on 1 November 1959. He was 50 years of age at the explosion, 58 at the date of trial and now 59. He was raised and educated in the capital, Dhaka. After leaving school he attended the University of Dhaka, graduating with a Bachelor of Commerce degree. He worked in the hospitality industry as a laundry supervisor in a large international hotel in Dhaka supervising 10 or 11 people. He was also politically active and rose to be the head of a major opposition party. He was not, however, a Member of Parliament. He operated more as a senior party apparatchik. He married in 1982 in Bangladesh and the family migrated to Australia in 1986. In Australia he initially worked in a factory at Marrickville making window blinds. From 1987 to 1989 he was employed as a machine operator at Universal Dyes in Botany and from 1990 he worked as a leather technician, having undertaken a course at TAFE. He was employed in a tannery until about 1997 when his employer relocated to Queensland. He obtained a taxi drivers licence, driving taxis from 1997. However, this ceased when he lost his driver's licence in 2006. Around this time, he and his wife separated although they remain on amicable terms. They have two children.
2. In the years before the accident he was actively involved in the Bangladeshi expatriate community rising to occupy the position of president of the Bangladeshi Association of Australia for a period of about 5 years. For a period of time he was a union supervisor with the Building Workers' Industrial Union.
3. After losing his taxi licence he was out of work for a period during which he obtained a licence as a security guard.
4. He commenced employment with the College on 4 May 2009 doing various jobs, but working mainly as a caretaker. He was provided with accommodation which included the payment of some services. He performed some security work at the school after hours.
5. He had a holiday in his homeland between 6 December 2009 and 7 January 2010, returning to his work at the school.
6. He was severely injured in the gas explosion at the College on 10 February 2010. His injuries were such that he was transferred by helicopter to Royal North Shore Hospital and treated in the Intensive Care Unit where he was intubated and ventilated.
7. On 12 February 2010 he underwent surgical debridement and skin grafts at both hands and forearms, debridement of his face, upper arms, bilateral thighs and his lower back. On 15 February 2010 he underwent a general anaesthetic for a change of the surgical dressings and again on 17 February 2010. On 19 February 2010 there was further debridement and skin grafting and the surgical change of dressing. This occurred again on 10 March 2010.

Earning capacity

1. The two significant issues in relation to the assessment of damages were as to residual earning capacity and the need for future care. So far as residual earning capacity was concerned the defendants tendered a vocational assessment report from Professor James Bright of 24 February 2016 (Exhibit 3D4.2, p 22). Professor Bright administered a battery of tests including the Kaufman Brief Intelligence Test to assist in assessing Mr Hossain's vocational capacity. In his oral evidence, he made it quite clear that questions in relation to Mr Hossain's physical capacity for work were beyond his expertise and required medical opinion for assessment (384.10 - .15T). Having regard to his expertise, Professor Bright was of the view that Mr Hossain may be suitable for employment as a community worker, a security alarm monitor, a gaming worker, a radio dispatcher, ticket seller, ticket collector or a bookkeeper. He also said that his results suggested a degree of "symptom magnification".
2. Professor Bright agreed that there was a difference between suitability for work, and a chance of getting that kind of work. The prospect of securing a job might depend upon presentation at the job interview and it was statistically harder to secure work over the age of 50, becoming increasingly difficult as age increased. He also agreed, however, that there was a degree of flexibility in the workforce these days - he referred to the gig economy. And that casual or part-time work might be an option for Mr Hossain. (390.5 - 391.45T).
3. There was other evidence relevant to Mr Hossain's residual earning capacity. In his second evidentiary statement, (Exhibit E p 215), the plaintiff said that he had invested the proceeds of his workers' compensation permanent loss compensation in a garment business in Bangladesh. It emerged in cross-examination that whilst in Bangladesh he had met a younger woman of entrepreneurial bent who was involved in a clothing manufacturing company. Mr Hossain and his friend formed a romantic attachment and had had a son together.
4. Upon his return to Australia he return to Australia he established a company with a similar name to the Bangladeshi company - MSI EXIM Pty Ltd on 14 February 2013 with a view to importing the garments manufactured by his friends business in Bangladesh into Australia for re-supply or retail. He had hoped the venture would be profitable. However, the company was deregistered on 19 September 2015.

Damages for non-economic loss

1. I have set out above my findings in relation to the nature and extent of the plaintiff's injuries and disabilities and their affect upon him. He has suffered pain and suffering, loss of amenity of life, loss of enjoyment of life and the most significant disfigurement over the 9 years and 7 months since the explosion.. He was 50 as at the date of injury and he is now 59. On the medium life expectancy tables he has a further 25 years of life expectancy. For the reasons I have sought to explain, as I regard his injuries as in a near catastrophic category. In making this assessment, I have borne in mind the requirements of s 16 Civil Liability Act. I have not been guided simply by what I have said about the degree of whole person impairment which is not directly relevant to the assessment of damages for non-economic loss. I refer to it merely as an indication or an illustration of the severity of Mr Hossain's injuries and their physical and psychological consequences. Learned Senior Counsel for Mr Hossain suggested an assessment of 80 percent of a most extreme case. Learned Senior Counsel for IAL proposed 60 percent. In my judgment, Mr Hossain's non-economic loss amounts to 80 percent of a most extreme case and I allow $526,500.00 [1]

Past out of pocket expenses

1. Past out of pocket expenses excluding the amount paid by the workers' compensation insurer for past domestic assistance have been agreed in the sum of $445,414.00 [2]

Past economic loss

1. When he was injured the plaintiff was employed by the College as a caretaker. He had other responsibilities. He was earning $924 net per week. I have already found that he has had no residual earning capacity since the date of the accident. The plaintiff's counsel propose that I should adopt the $924 per week as a base figure, allowing adjustments in accordance with the consumer price index movements, and adding an allowance for his keep. The defendants' counsel argue that there should be no adjustment to the base. There is no evidence as to the terms of the contract of employment and no evidence of the earnings of a comparable worker to establish movements in the amount Mr Hossain would probably have earned but for the injury had he continued with the College, which I regard as his most likely future circumstances, but for the injury.
2. I think I am entitled to take judicial notice of the consideration that wages growth in the Australian workforce in recent years has been somewhat sluggish and may not have kept up with increases in the consumer price index. I think the proper approach to take is to adopt the figures propounded by the plaintiff's counsel, but adopting a Malec v JC Hutton Pty Ltd approach, I will make a small discount for the prospect that the plaintiff's increases in earnings would not have kept pace with the consumer price index.
3. There is also an issue about whether an allowance should be made for the consideration that the plaintiff's keep at the school. Electricity and telephone accounts were paid. The plaintiff's counsel submit that although there is no direct evidence, I should make an allowance of, say, $350 per week net for the value of the accommodation and other benefits. The defendant's counsel submit that as there is no evidence as to the value of the benefits, no additional allowance should be made.
4. The evidence clearly establishes a loss. It is true the evidence does not permit me to precisely assess it. It undoubtedly has some value and I am of the view that the proper approach is to make some allowance for the loss, but exercising restraint because of the lack of evidence enabling accuracy.
5. The plaintiff's counsel's calculations start on 10 February 2010 at $924 per week and rise to $1,112 on 3 August 2018. The total at the time of hearing was $455,484. Running that same figure forward to the present may have added another 60 weeks at $1,112 or $66,720, which brings the sub-total to $522,204. The plaintiff's counsel suggest a figure of $350 per week net since the accident for the value of accommodation and other services. I am prepared to allow $250 per week for this amount. The period since the date of accident is 502 weeks and the sub-total is $125,500. The total is $647,704 from which I will deduct 5 percent to allow for the possibility that wages growth would not have kept pace with changes in the consumer price index. The 5 percent is $32,385.20. For past economic loss I allow $615,318.00

Past employer's contribution to superannaution

1. I adopt the convention of 11 percent of the allowance for past economic loss. Allow: $67,684.98

Future economic loss

1. The plaintiff's counsel argue that I should calculate future economic loss on the basis of no residual earning capacity at the rate of $1,112, plus the allowance of $350 for accommodation and services. The defendants' counsel suggest that I should allow the amount of $1,112 per week for the future, but reduce it by one-third to take account of the vicissitudes including the prospect that the plaintiff can find some paid work, having regard to his education, language skills and his cognitive ability.
2. I am of the view that the plaintiff is totally unfit for work. I accept that he is able to operate in the Bangladeshi community to offer a helping hand to others in that community less adept at operating in the general Australian community. However, this is an honorary role in essence and I find it difficult to see Mr Hossain turning it to a profit. Doubtless he does find it an honour to be able to help his fellow countrymen who have migrated to Australia like him. Charging for such assistance as he gives would doubtless lower his standing in the community and make his services less attractive. However, the usual allowance of 15 percent for the vicissitudes should be made. The plaintiff will attain the age of 60 on 1 November 2019 and it is appropriate to allow 7 years for the future to the pensionable age of 67 less 15 percent. The 5 percent multiplier for 7 years is 309.4. The calculation is $1112 x 309.4 = $344,052.00, multiplied by .85 = $292,444.00.

Future loss of superannuation benefits

1. Allow 12.48 percent in accordance with Najdovski v Krnojlovic [2008] NSWCA 175 $36,497.00

Future out of pocket expenses

1. Counsel are agreed that the allowance for future out of pocket expenses excluding the cost of commercial care should be $160,000 with a deduction for the vicissitudes of 10 percent: Avropiling Pty Ltd v Boveski [2018] NSWCA 146. I allow $144,000.00

Past and future domestic assistance

1. There is no disagreement that at all material times in the past, Mr Hossain has had a need for assistance with personal care, domestic duties and with the activities of daily life. So far as the past is concerned, the dispute relates to whether there is a need for personal care since March 2011. The question is whether the plaintiff has a need for the application of creams and other therapy for scar management twice daily as has been provided to him in the past. There is no doubt he is entitled to general domestic assistance since his release from hospital, although there is a dispute about the necessary hours.
2. I should say since sometime after his release from hospital, Mr Hossain has had the benefit of paid care provided by the workers' compensation insurer under WCA. The carer has been his ex-wife, Ms Nasirin Sultana who has nursing experience and is employed in a nursing home as an enrolled nurse. For a period of about 15 months after his release from hospital Mr Hossain lived with his ex-wife and their children in her family home. Ms Sultana gave evidence (83.40; 84.35T) that for a long period of time while Mr Hossain was living in her home she was providing 24 hour care. After Mr Hossain moved out in 2011, Ms Sultana continued to assist him with personal care such as showering and the like, given the condition of his hands. She washed his clothes, helped him shave and looked after the house. She helped feed him because of the difficulty he had with his right hand. She also offered companionship given his mental state. The workers' compensation insurer has been paying for 25.5 hours of care every week. She also works 6 hours per day, 5 days a week in her work as an enrolled nurse.
3. One matter in dispute is the need for Ms Sultana to apply cream to Mr Hossain's scars, twice daily for about 45 minutes on each occasion. On her calculations she provides greater care than the 25.5 hours per week allowed by the insurance company.
4. There were three professional occupational therapists qualified to give evidence in the case. Ms Kelly Walcok, Ms Susanne Borthwick and Ms Elaine Swaby. Ms Walcok and Ms Borthwick were qualified by the defendants and Ms Swaby by the plaintiff. They gave concurrent evidence, Ms Borthwick by AVL. The joint report of the occupational therapist was tendered as part of (Exhibit G, p 10). The contentious issues, as I have said, included whether it was necessary for Mr Hossain to continue to receive the application of cream and massage to his injured limbs. Ms Borthwick and Ms Walcok thought that it was unnecessary and contra-indicated by best medical practice. Ms Swaby at one time was advocating 24 hour care because of Mr Hossain's psychiatric injuries. She regarded him as a suicide risk and considered he needed to be effectively on suicide watch. She altered this and suggested that he should be receiving companion care for his mood, 14 hours per day. I must say I have no difficulty rejecting both of these opinions. He receives very significant companion care from his ex-wife who attends to provide personal care and domestic assistance. Moreover, he does continue to have an involvement in the Bangladeshi community and has contact with his children. I would not regard either of these matters as necessary because of his injuries.

Future care

1. I propose to proceed on the basis that in the future Mr Hossain will continue to receive commercially provided care for 25.5 hours per week. It may be that his wife, an enrolled nurse, will continue to provide the care. However, it is unlikely that she would do so voluntarily given the established commercial relationship. I propose to allow the same rate of $1,400 per week into the future. I have already said that at the age of 59 he has a life expectancy of 25 years on the medium life tables. There should be a deduction for the vicissitudes which I will allow at 10 percent. The multiplier on the 5 percent tables for 25 years is 753.6. The calculation is $1,400 by 3.6 = $1,055,040 multiplied by .9 = $949,536. $949,536.00

Fox v Wood allowance

1. As agreed, $35,031.00 [5] Total $3,742,344.00 [6]

Work injury damages

1. The damages payable under Div. 3 of Pt 5 of the Workers' Compensation Act relate to the amounts I have calculated under Pt. 2 of the Civil Liability Act for past and future economic loss. The amount is: $1,046,974.00 [7] .

Deduction under s 151Z(2) Workers' Compensation Act 1987

1. In accordance with State of New South Wales v Kennelly (No 2) (2001) NSWCA. It is necessary to make a deduction from the civil liability damages for the irrecoverable portion of the contribution otherwise payable by the employer under s 5 Law Reform (Miscellaneous Provisions) Act 1946. Although there are 4 civil liability tortfeasors it is unnecessary to calculated the deduction individually. It is sufficient that they be treated globally and that the difference between the contribution otherwise recoverable and the contribution actually recoverable is deducted from the total civil liability damages.
2. But for the provisions of Div 3 of Part 5 WCA the employer's contribution to the civil liability damages at the rate of 20 percent would have been $748,468.80 [8] . The amount payable under Div 3 of Part 5 at the rate of 20 percent of the work injury damages is $209,394.80 [9] . The difference is $539,074. This is the amount by which the civil liability damages must be reduced under 151Z(2)(d) WCA. I will ignore the 61 cents. The calculation is $3,742,344 minus $539,074 = $3,203,270.00

Summary of damages

1. Summary of damages: 1. Civil liability damages $3,203,270.00 [10] 2. Work injury damages $1,046,974.00

Judgments and orders

1. In accordance with short minutes of order agreed by the parties on 25 October 2019, final orders are: 1. Judgment for the Plaintiff against the First Defendant in the sum of $1,046,974. 2. Judgment for the Plaintiff against the Third Defendant under s 601AG Corporations Act 2001 (Cth) in the sum of $3,203,270. 3. Judgment for the Plaintiff against the Sixth Defendant in the sum of $3,203,270. 4. Judgment for the Plaintiff against the Seventh Defendant in the sum of $3,203,270. 5. Declare under s 5 Law Reform Miscellaneous Provisions Act 1946 (NSW) that each of the First Defendant, Third Defendant, Sixth Defendant, and the Third Defendant to the First Cross-Claim, are amongst themselves equally legally responsible for the Plaintiff's injuries. 6. Satisfaction of one judgment discharges the others pro tanto. 7. Grant leave for the Third, Sixth and Seventh Defendants to file Cross Claims against the Third Defendant to the First Cross Claim claiming contribution and indemnity pursuant to s 5 Law Reform Miscellaneous Provisions Act 1946 (NSW) by Friday 1 November 2019. 8. Judgment for the First Defendant in relation to its Cross Claim against the Third Defendant in the sum of $209,394.80. 9. Judgment for the First Defendant in relation to its Cross Claim against the Third Defendant to the First Cross-Claim in the sum of $209,394.80. 10. Judgment for the First Defendant in relation to its Cross Claim against the Sixth Defendant in the sum of $209,394.80. 11. Judgment for the First Defendant in relation to its Cross Claim against the Seventh Defendant in the sum of $209,394.80. 12. Judgment for the Third Defendant in relation to its Cross Claim against the First Defendant in the sum of $209,394.80. 13. Judgment for the Third Defendant in relation to its Cross Claim against the Sixth Defendant in the sum of $748,468.80. 14. Judgment for the Third Defendant in relation to its Cross Claim against the Seventh Defendant in the sum of $748,468.80. 15. Judgment for the Sixth Defendant in relation to its Cross Claim against the First Defendant in the sum of $209,394.80. 16. Judgment for the Sixth Defendant in relation to its Cross Claim against the Third Defendant in the sum of $748,468.80. 17. Judgment for the Sixth Defendant in relation to its Cross Claim against the Seventh Defendant in the sum of $748,468.80. 18. Judgment for the Seventh Defendant in relation to its Cross Claim against the First Defendant in the sum of $209,394.80. 19. Judgment for the Seventh Defendant in relation to its Cross Claim against the Third Defendant in the sum of $748,468.80. 20. Judgment for the Seventh Defendant in relation to its Cross Claim against the Sixth Defendant in the sum of $748,468.80. 21. The First Defendant (subject to the provisions of s.346 of the Workplace Injury Management and Workers Compensation Act 1988 and div.3 part 17 of the Workers Compensation Regulation 2016), Third Defendant, Sixth Defendant, Seventh Defendant, and the Third Defendant to the First Cross-Claim, are to pay the Plaintiff's costs of the proceedings; save that the Third Defendant to the First Cross-Claim's liability for costs is limited to 20% of the Plaintiff's costs. 22. Each party is to bear their own costs of each of the cross claims. 23. On the condition that Notices of Appeal are filed by 22 November 2019, the orders, declarations made are stayed until the determination of those appeals. 24. Liberty to apply on 5 days' notice for the purpose of permitting the first defendant, if it wishes, to seek leave to amend its cross claim to pursue an action pursuant to s151Z(2)(e) Workers Compensation Act 1987 in the event that such a cause of action becomes available.

Endnotes

1. Updated figure substituted by agreement
2. Updated figure substituted by agreement
3. Corrected under the slip rule
4. Corrected under the slip rule
5. Updated figure substituted by agreement
6. Recalculated to take account of updates and corrections
7. Recalculated by consent
8. Corrected to take account of agreed changes
9. Corrected to take account of agreed changes
10. Recalculated by consent

Amendments 01 October 2019 - Hearing dates amended; Catchwords: second paragraph; second line "independent contractor" amended to "principal contractor". Paragraph 13: Line 4 the words "as I have said" removed. 02 October 2019 - Paragraph [42] - First sentence the word "avaIALble" amended to "available". Paragraph [52] - Second sentence the word "avaIALble" amended to "available" Paragraph [106] - First sentence - delete date. Paragraph [116] - First sentence; last word - insert the word "Star" after the word "Five". Paragraph [119] - First sentence; the word "not" inserted between the words "could" and "themselves". Paragraph [122] - First sentence between the words "when" and "work" the word "his" amended to "Five Star's". Paragraph [130] - Last sentence insert the word "it" between the words "I think" and "implicit". [138] - Second sentence the words "installation and associating" replaced with the words "pipes and associated". [144] - Last sentence the word "of" inserted between the words "safety" and "persons" 29 October 2019 - Paragraph 228 - last line updated figure substituted by agreement. Paragraph 229 - last line updated figure substituted by agreement. Paragraph 249 - Fourth sentence figure of $24 per hour corrected under the slip rule. Paragraph 249 - last line figure corrected under the slip rule. Paragraph 251 - Updated figure substituted by agreement. Paragraph 251 - total figure - recalculated to take account of updates and corrections. Paragraph 252 - last line figure recalculated by consent. Paragraph 254 - First sentence - figure corrected to take account of agreed changes. Paragraph 254 - Second sentence - figure corrected to take account of agreed changes. Paragraph 255 - Civil liability Damages - recalculated by consent. Paragraph 256 - Orders amended in accordance with short minutes of order agreed to by Counsel. 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: 29 October 2019