Hutchison Construction Services Pty Ltd v Fogg; Fogg v Les Quatre Musketeers Pty Ltd

Court of Appeal (NSW)|2016-05-31|Before: Beazley P, Meagher JA, Leeming JA, Johnson J

pson v Woolworths (Q'land) Pty Ltd [2005] HCA 19; 221 CLR 234 Transpacific Industrial Solutions Pty Ltd v Phelps [2013] NSWCA 31 Yarrabee Coal Company Pty Ltd v Lujans [2009] NSWCA 85; [2009] Aust Torts Rep 82-024 Category: Principal judgment Parties: In 2015/185608: Hutchison Construction Services Pty Ltd (Appellant/ First Cross Respondent) Mr Arthur Fogg (First Respondent/Cross Appellant) Les Quatre Musketeers Pty Ltd t/as Plastamasta South Coast (Second Respondent/Second Cross Respondent)

In 2015/195139: Mr Arthur Fogg (Appellant) Les Quatre Musketeers Pty Ltd t/as Plastamasta South Coast (Respondent) Representation: Counsel: N Polin SC (Hutchison Construction Services Pty Ltd) D Hooke SC, G Smith (Mr Arthur Fogg) P A Rickard (Plastamasta South Coast)

Solicitors: Moray & Agnew (Hutchison Construction Services Pty Ltd) Lough & Wells (Mr Arthur Fogg) Goldbergs Lawyers (Plastamasta South Coast) File Number(s): 2015/185608; 2015/195139 Publication restriction: Nil Decision under appeal Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law Citation: [2015] NSWSC 648 Date of Decision: 29 May 2015 Before: Johnson J File Number(s): 2011/316330; 2012/241074

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] HEADNOTE [This headnote is not to be read as part of the judgment] On 13 October 2008, Mr Fogg fell over while delivering sheets of plasterboard to a construction site in Kiama, injuring his ankle and knee. In 2011, Mr Fogg commenced proceedings against Kane Constructions (NSW) Pty Ltd, the head contractor at the site. Hutchison Construction Services Pty was a subcontractor retained by Kane at the Kiama site. Hutchison had contracted with Mr Fogg's employer, Plastamasta South Coast, for the supply and delivery of various materials to the site. In 2012, Mr Fogg joined Hutchison to the proceedings against Kane and commenced separate proceedings against Plastamasta. The two proceedings were heard concurrently. The primary judge dismissed Mr Fogg's proceedings against Kane and Plastamasta, but held that Mr Fogg had established liability against Hutchison. There was a substantial conflict as to the primary facts. The primary judge accepted Mr Fogg's account of his accident and entered judgment in the amount of $944,255.03 against Hutchison. His Honour ordered that Mr Fogg pay the costs of Kane and Plastamasta and that Hutchison pay Mr Fogg's costs. Hutchison appealed from that decision, and Mr Fogg cross-appealed. The issues on the appeal and cross-appeal were as follows: (a) Hutchison challenged the primary findings of fact as to how Mr Fogg was injured; (b) Hutchison challenged the primary judge's formulation of the duty of care found to have been owed by it, and the findings of breach and causation; (c) both Hutchison and Mr Fogg challenged the finding of contributory negligence of 15% (Hutchison contended for a finding of at least 50% and Mr Fogg contended there should be no contributory negligence); (d) Hutchison challenged the finding that Plastamasta had no responsibility, with the result that there was no reduction pursuant to s 151Z of the Workers Compensation Act 1987 (NSW); (e) Mr Fogg challenged aspects of the calculation of damages; and (f) Mr Fogg challenged the primary judge's failure to order a Bullock or Sanderson order in relation to Kane's costs. Held by Leeming JA, Beazley P and Meagher JA agreeing, dismissing Hutchison's appeal and allowing Mr Fogg's cross-appeal in part: Hutchison's challenge to findings of primary fact 1. No error was shown in the resolution of primary fact by the primary judge: at [44]-[69]. 1. The evidence did not establish any incontrovertible fact that was wholly inconsistent with Mr Fogg's account of his accident, and is insufficient to enable appellate review of the demeanour-based findings made by the primary judge: at [45]-[57]. Fox v Percy [2003] HCA 22; 214 CLR 118; Robinson Helicopter Company Inc v McDermott [2016] HCA 22, cited 1. The reasons of the primary judge accorded with what was said in Fox v Percy, reasoning so far as possible on the basis of contemporaneous materials, objectively established facts and the apparent logic of events, as well as relying upon his Honour's assessment of Mr Fogg as a reliable witness. His Honour was not required to do more than he did to resolve the dispute as to primary fact: at [59]-[68]. Baker v David [2015] NSWCA 235; Murray v Sheldon Commercial Interiors Pty Ltd [2016] NSWCA 77, considered and applied Hutchison's challenge to the formulation of duty and findings of breach and causation 1. The formulation of duty by the primary judge was entirely orthodox and accorded with the formulation articulated in Leighton Contractors Pty Ltd v Fox [2009] HCA 35; 240 CLR 1: at [75]. 2. In written submissions at trial, Hutchison accepted that "within the terms of" subss 5B(1)(a) and (b) of the Civil Liability Act 2002 (NSW), the risk of harm was foreseeable and not insignificant. It was not open to Hutchison on appeal to claim error in the approach taken by the primary judge to subss 5B(1)(a) and (b): at [77]-[78]. 3. The delivery of plasterboard was made to Hutchison, and it was Hutchison's employee who directed Mr Fogg to unload the plasterboard at a place and time when he was exposed to the risk posed by the uneven surface. There was no error in the primary judge's conclusion that a reasonable person would have devised a safer method for the delivery of the plasterboard, nor in his Honour's articulation of precautions that a reasonable person would have taken: at [79]-[82]. Electric Power Transmission Pty Limited v Cuiuli (1961) 104 CLR 177; Transpacific Industrial Solutions Pty Ltd v Phelps [2013] NSWCA 31; Patrick Stevedores Operations (No 2) Pty Ltd v Hennessy; FBIS International Protective Services (Aust) Pty Ltd v Hennessy [2015] NSWCA 253, cited 1. Mr Fogg's fall was caused by stepping on the uneven surface on which he was directed to unload the plasterboard. This was a case where causation was obvious, and was intertwined with breach: at [83]. Mr Fogg's and Hutchison's challenges to contributory negligence 1. Mr Fogg's challenge to the finding of contributory negligence: 1. The fact that the relative responsibility attributed to Hutchison was almost six times greater than that attributed to Mr Fogg reflected Mr Fogg's relatively junior position and the substantial control exercised by Hutchison's employee: at [89]. 1. Hutchison's challenge to quantification: 1. Mr Fogg was unnecessarily exposed to the risk caused by the uneven surface where Hutchison's employee directed Mr Fogg to unload. The contention for a finding of 50% contributory negligence was rejected: at [90]. Hutchison's challenge to the finding that Plastamasta bore no responsibility 1. The evidence did not establish that Mr Fogg's offsider, also an employee of Plastamasta, decided jointly with Hutchison's employee where to direct Mr Fogg to park the truck and unload. The fact that both men guided Mr Fogg as he reversed the truck has no bearing on s 151Z of the Workers Compensation Act 1987 (NSW): at [93]. Mr Fogg's challenge to the calculation of damages 1. Elaborate reasons are not required when identifying an integer in a calculation of future loss in a case such as the present where the evidence is scant and the imponderables loom large. The primary judge's failure to provide adequate reasons for the estimate of future weekly medical expenses was not fatal to this aspect of the judgment; the quantification was not against the weight of evidence and was, if anything, generous to Mr Fogg: at [97]-[98], [105]. Kwong v Abdulwahab [2016] NSWCA 107, applied 1. The primary judge erred in reducing the amount for future economic loss to account for a residual earning capacity, when his Honour found that the evidence did not establish a past residual earning capacity that Mr Fogg was practically capable of exercising: at [109]-[110]. 2. There was no appellable error in the primary judge's rejection of Mr Fogg's claim for future domestic assistance and care: at [114]. Mr Fogg's challenge to costs 1. The nature of the power to award costs is discretionary, and Mr Fogg established no basis for interfering with the costs order made by the primary judge: at [117]-[120].

Judgment

BEAZLEY P: I have had the advantage of reading Leeming JA's reasons in draft. I agree with his Honour's reasons and proposed orders.
MEAGHER JA: I agree with Leeming JA.
LEEMING JA: On 13 October 2008, Mr Arthur Fogg was delivering building materials to a site at Kiama on the south coast of New South Wales. While unloading sheets of Villaboard from the truck he had been driving, he fell over, injuring his ankle and knee. He refused medical assistance and continued working for the balance of that day. His injury turned out to be a serious one and in 2011 he commenced proceedings against Kane Constructions (NSW) Pty Ltd, the head contractor at the site. Kane had contracted with Hutchison Construction Services Pty Ltd for the external cladding and interior refurbishment of the buildings at the site. In 2012, Mr Fogg joined Hutchison to the litigation. By separate proceedings, also commenced in 2012, Mr Fogg sued his employer, Les Quatre Musketeers Pty Ltd trading as Plastamasta South Coast, which had contracted to supply materials to Hutchison.
Although listed for no more than five days, the trial ultimately occupied the better part of 14 days in August 2013 and early 2014. The primary judge dismissed Mr Fogg's proceedings against Kane and Plastamasta, but entered a judgment in favour of Mr Fogg against Hutchison in the sum of $944,255.03: Fogg v Kane Constructions (NSW) Pty Ltd; Fogg v Les Quatre Musketeers Pty Limited (t/as Plastamasta South Coast) (No 5) [2015] NSWSC 648. Subsequently, following an exchange of written submissions and a short oral hearing, his Honour ordered that Mr Fogg pay the costs of Kane and Plastamasta, and that Hutchison pay Mr Fogg's costs: Fogg v Kane Constructions (NSW) Pty Ltd; Fogg v Les Quatre Musketeers Pty Limited (t/as Plastamasta South Coast) (No 6) (unreported, 12 August 2015).
From that judgment and those orders, Hutchison has appealed and Mr Fogg has cross-appealed. A separate appeal by Mr Fogg against Plastamasta was resolved shortly before the hearing.
The issues arising on Hutchison's appeal and Mr Fogg's cross-appeal may be summarised as follows. First, Hutchison challenges the primary findings of fact as to how Mr Fogg was injured on 13 October 2008. Secondly, Hutchison challenges the formulation by the primary judge of the duty of care found to have been owed by it, and the findings of breach and causation. Thirdly, both Hutchison and Mr Fogg challenge the primary judge's finding that Mr Fogg was guilty of contributory negligence measured at 15%. Hutchison contends for a finding of at least 50%; Mr Fogg maintains that there should be no contributory negligence. Fourthly, Hutchison challenges the finding that Mr Fogg's employer, Plastamasta, had no responsibility, with the result that there was no reduction pursuant to s 151Z of the Workers Compensation Act 1987 (NSW). Fifthly, Mr Fogg challenges aspects of the calculation of damages relating to future medical expenses, future economic loss and future care. Sixthly, Mr Fogg challenges the primary judge's order as to costs, maintaining that a Bullock or Sanderson order should have been made with respect to the costs of Kane.
There is no way of avoiding a detailed examination of the evidence. The most efficient and intelligible course, however, is to start with what was uncontroversial, summarise the controversial evidence as to the events of 13 October 2008, and then turn to the details of that evidence as and when it is necessary in order to resolve the issues outlined above, and in the same order.

Uncontroversial factual background

On the morning of 13 October 2008, Mr Fogg and his offsider, Mr Robert Cady, were driving Plastamasta's truck from its premises on the Princes Highway at Yallah to make a delivery to one of its regular clients, Hutchison, at the building site of the Kiama showground. Mr Fogg had commenced employment with Plastamasta some six weeks earlier, but had had considerable experience in the construction industry. He was 37 when the incident occurred. Mr Cady said he had commenced work with Plastamasta about six months earlier.
A Site Safety Plan prepared by Kane describes the project as consisting of "the part demolition of the existing pavilion to allow for the extension and construction of a new multi level steel, concrete and glass pavilion, separate stand alone grandstand and extensive external hard and soft landscaping". As redeveloped, the pavilion is a large rectangular structure facing the showground. The evidence did not disclose its exact dimensions. Although not aligned with compass directions, the evidence referred to the longer eastern side of the pavilion facing the showground and the north eastern corner. I will adopt the same course. Photographs of the completed structure record a covered verandah on the eastern side of the structure supported by steel pillars. As completed, there was a ramp at the north eastern corner of the building for disabled access from ground level to the verandah, and two large concrete steps running along the balance of the eastern side of the structure.
At various points in the top and bottom concrete steps along the eastern side of the building there are recessed intermediate steps for easier access from ground level to the verandah. As completed, the eastern wall of the structure is mostly glass sitting in metal frames, and the verandah is around two metres wide and is tiled with pavers. As completed, in order to reach the verandah from the ground, a sufficiently agile person could take a very large step up so as to stand on top of the bottom step, take another step so as to move to the internal edge of that step, and then take a second large step up so as to reach the level of the verandah. But it would be much easier to take advantage of the recessed intermediate steps and take four ordinary steps to travel from the ground to the verandah.
Returning to 2008, the delivery docket records that on 13 October the truck was loaded with 80 sheets of RE Masta-shield, Villaboard and Fire-Shield, with a total weight of 3,616kg. The load included 14 sheets of 3,000 x 1,200 x 12mm Villaboard with a total weight of 932kg. That equates to some 66kg per sheet. Mr Fogg was driving. When the men arrived at the site, it was uncontroversial that they unloaded some of the plasterboard sheets at the southern end of the site, without incident. Mr Fogg then drove the truck to the northern end of the site, where the balance of Hutchison's materials were to be unloaded.
There is a very large dispute as to how the men performed this part of the delivery, during which Mr Fogg's accident occurred. There was no dispute that in the course of so doing, Mr Fogg fell and twisted his ankle.
Mr Fogg attended Shellharbour Hospital on 13 October 2008 and obtained a medical certificate. A note in the diary of Mr Paul Farrugia (a director of Plastamasta) for 13 October 2008 records: "Arthur twisted his ankle on delivery. I asked him if he needed to go home or rest it. [He said] it is better to keep moving it as it doesn't hurt that way."

Mr Fogg's account of the circumstances of his fall on 13 October 2008

Mr Fogg described, by reference to photographs of the completed structure, precisely where he said he slipped and fell. He maintained that on 13 October 2008, the lower of the two concrete steps had not been installed. He said that a temporary loading dock had been constructed at a point on the eastern side of the structure, but that glaziers had parked a truck there when he arrived on the morning of 13 October. He said that he was directed by the site foreman to reverse the truck into the recess within (what is now) the top concrete step. He said: "They wanted me in the recess step to get - try and get the tray over [the] top of the pavilion which - so we could just walk straight off and straight down."
He said: "I got out of the truck, I looked and I said to both of them, 'Up there where the loading dock is would have been better because it was level' and they said, 'But the boards have got to go here' and I said, 'Oh well, we'll unload them here'."
He explained that the temporary loading dock comprised some pallets stacked on top of each other, and it was level because plywood had been laid on the top of the pallets, across the concrete on the verandah and into the interior of the building.
According to Mr Fogg, there were two places within the partially built structure where the surface was not level. First, the concrete on the verandah had a "lip" because the pavers had not been laid. There was no dispute that the drop was around 50-60mm. Secondly, there was what was described as a "hob", where the windows were going to be placed on the eastern side of the building.
Mr Fogg said that he was able to reverse the truck towards the partly completed verandah so that the corner of its tray was inserted into the recess in the top step. His written statement included the following: "Rob [Mr Cady] had backed me on an angle over a recessed concrete step. After backing the truck into the position I was directed into, I jumped out of the truck to start offloading the villaboard when the foreman said words to the effect 'hang on a minute, I'll get some timber to put across that step.' He left and came back a short time later with two pieces of two-by-four which were approximately 1.2 to 1.3 m long. He laid them along the recessed concrete step."
Mr Fogg said that he and Mr Cady then proceeded to offload the balance of Hutchison's materials. The men had delivered around 20 sheets before the incident occurred. This involved taking them from the back of the truck, across the verandah, over the hob and into what would become the interior of the building, with Mr Cady carrying the front end of the board and Mr Fogg following behind carrying the rear end. In his evidence in chief, Mr Fogg described his fall as follows: "The front of my toes landed on the edge of where the pavers and that smooth part was and my ankle stayed flat, my knee went to the left and struck the concrete and the weight of the board pulled me down to the right."
Mr Fogg and his father subsequently returned to the (completed) pavilion and took photographs of how Mr Fogg said his injury was suffered. His evidence in chief included confirmation that the tray of the truck was inserted into the recess in the top step and that two blocks of wood had been placed in that recess.
A statement prepared by Mr Fogg (and handwritten by his partner, Ms Fiona deSouza) was in evidence and (I would infer) was prepared prior to him returning to the site. There was evidence that it was sent to Mr Farrugia a few days after the incident (he had requested a number of his staff to provide written accounts). The statement provides as follows: "On Monday 13/10/08 I was driving the 12 tonne MR [medium rigid] licensed truck with Rob as my offsider to the Kiama Pavillion [sic]. We were to deliver approx 3 to 4 tonnes of villaboard to the construction site. The site foreman directed me as I backed the truck into position as there was a glazier truck parked next to the pallets. Where I had backed the truck there was a recessed 2 foot step down in the concrete but there was still a gap so the foreman laid down a couple of planks to use as walkway for us to offload the villaboard. At approx 8 am we had offloaded half the load when I was in the rear carrying a 12mm villaboard with Rob in front when I think I must have rolled my left foot off the edge of the concrete (approx 60mm lip) and went down rolling my [left] ankle outwards very sharply. I dropped my end of the villaboard I was carrying. 2 construction workers rushed over and picked up the villaboard to get it away from me."

Contemporaneous documents

A worker's injury claim form was signed by Mr Fogg on Thursday 16 October 2008. It stated that the injury occurred at 8am on 13 October, and that it was reported to Mr Paul Farrugia. In the box headed "What happened and how were you injured?" had been written: "Carrying 12mm villaboard, foot slipped & rolled outward on L ankle".
In the box headed "What task/s were you doing when you were injured?" was handwritten: "Carrying 12mm villaboard with offsider".
Mr Gary Brownlee was a supervisor with Hutchison who was on site on 13 October 2008. He had signed two documents, and one of his signatures was dated 17 October 2008. Both documents had Kane logos on them and appeared to have been faxed no later than the morning of 20 October 2008. The first is as follows: "Att Paul, please finish this report and fax back, keep your copy. The driver was supplyed [sic] timber to make it easyer [sic] to step from truck to concrete terrace which has a 70mm set down for tiling. But did not use, and we believe he stepped on the edge, Steve the site foreman offered ice and to fill in a report form, but was told it is fine."
The second is completed in different hands, gives contact details of Mr Fogg, states that at the time of his injury he was "carrying FC [fibre cement] sheets", states that Mr Fogg had "rolled left ankle on concrete step" and described the witness or first person on the scene as "truck offsider".
Both those documents, especially the first, were supportive of Mr Fogg's account. However, as will be seen below, Mr Brownlee denied that they were accurate.
Mr Fogg was squarely confronted in cross-examination with some photographs which became Exhibit 3. One of the photographs showed the eastern side of the partly built structure with both the top step and the lower step in place. It was squarely put to him that he was mistaken in his recollection and that the lower step was in place on 13 October 2008: "Q. I want to suggest to you, sir, that the lower level of concrete was poured on the day of your accident and that the pallet timber, the plywood-lined pallet loading dock was constructed roughly in the area where the pallet, the right hand most set of pallets were sitting on that level in front of the truck? A. Yeah, I can see that, see the pallets sitting there, but it didn't look like that when we were there. Q. I'm not suggesting it's exactly the same situation it was on the day. Clearly, Mr Fogg, the access ramp hasn't been constructed at this time. I want to suggest to you, and by reference to this photo, in part, contrary to your earlier evidence, the bottom terrace of concrete was poured at the time of your accident, are you able to agree or disagree with that proposition or just don't remember? A. I can swear black and blue that it wasn't there. Not that I can recollect it, that I can recall."

Evidence of other witnesses of conditions at the building site

Mr Fogg's offsider, Mr Cady, was also called in the plaintiff's case. There had been difficulties locating Mr Cady, and indeed the plaintiff's case had closed. However, the primary judge permitted Mr Fogg to reopen at the commencement of the resumed hearing in February 2014: Fogg v Kane Constructions (NSW) Pty Ltd; Fogg v Les Quatre Musketeers Pty Limited (t/as Plastamasta South Coast) (No 2) [2014] NSWSC 1820. Mr Cady had, immediately before giving evidence, prepared an evidentiary statement which corroborated the account given by Mr Fogg. He adhered to that statement in evidence in chief. In cross-examination, he conceded that his statement contained matters which he could not recall. He said that he directed Mr Fogg to put the truck into a position parallel to the side of the pavilion. By reference to the photograph in Exhibit 3, he agreed that the photograph had been taken at some stage before the date when Mr Fogg was hurt. He agreed that the bottom step was in place at the time of the injury.
It appeared that Mr Cady (apparently unknown to Mr Fogg's lawyers) had given a statement to an investigator on 22 August 2012, in which he had said that Mr Brownlee had "never needed to tell us where to park" and that on the day of the accident, a temporary step on the top of the terrace had been built near where Mr Brownlee had asked the plasterboard to be delivered. Finally, although his statement made no reference to a timber ramp on the north eastern corner, and at first in his cross-examination he denied the existence of such a ramp, he then said that he did not recall such a ramp, and then accepted that there could have been such a ramp. He then acknowledged that he "might be totally mistaken in what you say in your statement" and that it may well have been that the plasterboard was unloaded via a ramp on the north east corner. After the conclusion of Mr Cady's cross-examination, and a short adjournment (during which counsel for Mr Fogg was permitted - without opposition from the other parties - to speak to Mr Cady), he was re-examined as to his state of health while giving evidence. He said that he was confused and had various health problems.
Mr Gary Brownlee was called by Hutchison. He had prepared a statement, in August 2012, to which were annexed the two documents signed by him shortly after the accident to which reference has been made above. He said: "I have been shown reports that I have signed. This was a week later when I was asked to write something down. I did not go into any detail on these reports. I am sure that what I have stated in this statement is my accurate recollection of what occurred. I did not see Arthur slip on the concrete or the wooden plank, he was standing beside the truck removing a piece of Board and he made a noise and then leaned the board against the truck and came straight over to see me. I was standing near the area of the ramp at that time."
Mr Brownlee said that he had told Mr Fogg where to unload the sheets but not where to park the truck. He gave evidence that there was a different mechanism for deliveries onto the site: "There was a walk way made of planks to walk into the building site. The planks were at the north east corner of the building near the main entry doors. I thought it was a safe access for him. The workers on site had to take bricks into the site so a wooden ramp was built for easy access. The ramp was around 4m long x at least 900mm to 1200mm wide. It was at a very slight angle. The ramp extended over a concrete veranda on the exterior of the building which was going to be tiled. The veranda was around 2m wide."
Mr Brownlee gave a different account of the accident. In his statement of 24 May 2013, Mr Brownlee stated that: "Mr Fogg and his offsider started to unload the plasterboard from the truck one sheet at a time. They unloaded the plasterboard from the ground, reaching up and slipping the plasterboards off the truck. Mr Fogg and his offsider then delivered a number of plasterboard using the ramp as an access to the pavilion. ... At one point, I heard Mr Fogg call out and I saw him standing on the ground. I saw that the plasterboard sheet that the plaintiff and the offsider had been carrying was down and rested against the side of his truck."
Mr Brownlee also stated that "as far as I'm aware they do not make 1.2m x 3.6 x 12mm Villaboard" and that "the sheets we used at Kiama were 3.6m x 1.2m x 6mm sheets of Villaboard with a top weight of 44kgs".
Mr Brownlee said that he had no doubt that the photographs in Exhibit 3 were taken two to three months before Mr Fogg's incident. Mr Brownlee was cross-examined about that recollection in particular, as well as more generally about his recollection of the events. He confirmed that it was his signature on the documents annexed to his statement, and stated that so far as he could recollect, Mr Fogg's injury had occurred in the afternoon after lunch. He said the information in the documents did not come from him, and maintained that the information was "absolutely incorrect". He said that he had not kept his diary, and that "at that time [Mr Fogg's incident] was something that I had put as a very low, low; like I said I wouldn't have even been worried about it". He was cross-examined on the delivery docket and he was confronted with the proposition that he was quite wrong to say that 44kg was the heaviest weight of Villaboard used on the site.
Mr Brownlee maintained that there was a 4 or 4.5m ramp on the north eastern corner of the building. Despite being shown the contemporaneous records, he maintained that the incident happened in the afternoon: "To my best of knowledge, I believe it was in the afternoon. I could've been wrong, but I'm just telling the truth. As far as I know it was in the afternoon." He accepted at the end of his cross-examination that "between October 2008 and July 2012, you had completely forgotten about this incident".
Hutchison also called Mr Stephen Leighton, who had been working as a gyprock plasterer in October 2008. Mr Leighton did not witness the accident, although he was present at the site on 13 October 2008. He confirmed that the photographs in Exhibit 3 showed the site in the form it was at the time of the accident, and indeed that there was never a time when only the top step was in place. He said that there had been a wooden ramp on the north eastern corner of the building site for deliveries. It was squarely put to him that the ramp was not operational for delivery of materials until after Mr Fogg's accident. Mr Leighton was asked, "Did you discuss anything about this case with Mr Brownlee this week?", to which he agreed. That answer was not explored further in cross-examination or re-examination.

The evidence of Ms deSouza and Ms X

It was accepted that Mr Fogg, who had left school at the beginning of Year 9, had difficulty reading and writing. Mr Fogg's partner, Ms deSouza, had handwritten Mr Fogg's account of the accident. During the course of her cross-examination, Ms deSouza had volunteered that Mr Farrugia had told Mr Fogg that he would not be eligible for workers compensation, which was one reason she gave for making the statement. The primary judge found that this evidence was false.
Ms X, who was a child at the time of Mr Fogg's accident, gave evidence on behalf of Hutchison, to the effect that Mr Fogg and Ms deSouza had said in her presence as the statement was being handwritten that "they should change the story as to how the accident happened". The trial judge addressed this at [57]-[61]. Despite his finding that Ms deSouza had given false evidence in one respect, the primary judge accepted the evidence of Mr Fogg and Ms deSouza that no discussion such as recounted by Ms X had taken place concerning a false account. During the course of the appeal, counsel for Hutchison accepted that he did not challenge the rejection by the primary judge of Ms X's evidence, and so it is unnecessary to say anything more about it.

The resolution of the conflicting evidence and primary findings of fact by the primary judge

The primary judge, although stating that he intended no disrespect to Mr Cady, found that "[h]e struck me as a witness doing his best to recall events that had long since passed from his memory". That accorded with the submissions made by Hutchison at trial, where it was said that his evidence was described as "quite extraordinary" and that "Mr Cady obviously was getting a bit confused as to what actually happened". The primary judge then said that he had "not had regard to [Mr Cady's evidence] in determining where the loading dock was positioned and where and how Mr Fogg's accident occurred".
Having dealt with the reliability of the handwritten account made by Ms deSouza and the evidence of Ms X in the manner indicated above, the primary judge dealt with the resolution of the conflict as to the primary facts at [62]-[75]. His Honour said that he had had regard to the evidence given by all relevant witnesses and their demeanour, as well as the documentary evidence, and in particular, any contemporary documentary evidence. His Honour frankly acknowledged that there had been delay between hearing the witnesses and delivery of judgment, but stated that he had reviewed the transcript as well as notes made by him at the time, and that the process of preparing a judgment had recalled to mind the evidence of the witnesses and the impressions made at the time. The primary judge referred to the broad consistency in the accounts given by Mr Fogg at various times, commencing with an early time close to the events. In contrast, his Honour observed that Messrs Cady, Brownlee and Leighton had given fluctuating evidence, depending "on the time at which their various statements were made and to whom". After referring to the approximately five year delay between the incident and those witnesses giving evidence about it, the primary judge added, "Significantly, the incident was not particularly noteworthy to them".
The primary judge then said at [68]-[69]: "There is no doubt that the Plaintiff fell and injured his leg at the Kiama Showground site. The incident itself was not especially dramatic or memorable to persons other than the Plaintiff, who suffered injury and was required to deal with its consequences. The Plaintiff impressed as a relatively straightforward witness who gave his account of the accident in a manner which was not accompanied by undue elaboration or exaggeration. I have a great deal of difficulty in accepting much of the evidence of Messrs Cady, Brownlee and Leighton relating to Mr Fogg's accident. This conclusion does not reflect adverse findings as to their honesty, simply as to their recollections. I believe that much, if not all, of their evidence is entirely reconstructed. I am buttressed in this finding by part of Exhibit 18, a handwritten document signed by Mr Brownlee on or about 17 October 2008 which provides powerful support for central aspects of the Plaintiff's version."
The document regarded by the primary judge as buttressing his findings was the handwritten note signed by Mr Brownlee sent to Mr Farrugia around 20 October 2008.
After observing that nothing in Mr Farrugia's evidence undermined Mr Fogg's account of the circumstances of the fall, his Honour found at [73]-[75] as follows: "In light of the foregoing, I am satisfied on the balance of probabilities that the Plaintiff's account (at [27]-[37] above) concerning the circumstances of his fall on 13 October 2008 is accurate and should be accepted. In particular, I accept the existence of a makeshift loading dock of the type described by the Plaintiff and his account of where that loading dock was positioned on the day of his accident. I also accept the fact of the glazier's truck blocking the loading dock and that Mr Brownlee, in combination with Mr Cady, directed the Plaintiff to park his truck with its tray over the recessed concrete step and that the Plaintiff suggested to them that use of the loading dock would be preferable. In reaching these findings, I have had regard to submissions made for Kane concerning the mechanism of the fall and for Hutchison concerning the location where, according to the Plaintiff, the truck was parked prior to the unloading process. I am satisfied of the accuracy of the Plaintiff's account. I note the concurrent evidence of the medical practitioners that the injuries suffered to the Plaintiff's left ankle (the unanimous view) were consistent with the biomechanics of the accident as described by the Plaintiff. Three out of four of the medical experts considered that the injuries to the left knee were consistent with the Plaintiff's account of the biomechanics of the accident. This evidence has fortified my conclusion that the Plaintiff's account of the accident should be accepted."

Challenge to findings of primary fact (ground 1, 2 and 3)

The first three grounds of Hutchison's appeal alleged error in accepting the evidence of Mr Fogg and rejecting the evidence of Messrs Brownlee, Leighton and Cady as to how the accident had occurred, error in failing to give adequate reasons for that course, and error in failing to deal with the evidence and Hutchison's submission as to the presence of the bottom step in Exhibit 3.
Hutchison's essential submission was that the photographic evidence of the bottom step, the presence of which was confirmed by each of Messrs Brownlee, Leighton and Cady, amounted to an "incontrovertible fact" enabling appellate review of the expressly demeanour-based findings made by the primary judge, in accordance with what was said in Fox v Percy [2003] HCA 22; 214 CLR 118 and earlier cases, now reaffirmed in Robinson Helicopter Company Inc v McDermott [2016] HCA 22 at [43]. In light of the failure, so it was said, by counsel for Mr Fogg to challenge the evidence of Messrs Brownlee, Leighton and Cady, the primary judge was "compelled" to find that the bottom step was in place, with the result that the accident could not have occurred in the manner described by Mr Fogg. In both written and oral submissions, the point was put variously as the primary judge being "compelled" to accept the evidence of Messrs Brownlee, Leighton and Cady over the evidence of Mr Fogg, or "all but compelled" to find there was a bottom step in place on the day of the accident. Accepting that appellate review of demeanour-based findings of primary fact may be available in either of those cases, there remains an important difference between being "compelled" and "all but compelled" to make a particular finding: see Fox v Percy at [28] and [29]. Hutchison's submissions elided over that difference. It is not necessary to say anything more, because I do not accept either submission.
The presence of the bottom step at the Kiama showground was not a matter which was incontrovertibly inconsistent with Mr Fogg's case. The dispute was between the recollections of Messrs Brownlee and Leighton, who said that the step was in place, as shown on the photograph in Exhibit 3, and Mr Fogg, who denied it.
There are three reasons why Hutchison's case based on the presence of the lower step is much weaker than it contended, and is insufficient to give rise to review in accordance with the principles stated in Fox v Percy.
The first is that it was not firmly established whether the photograph was taken before 13 October 2008. Hutchison relied on the recollections of Messrs Brownlee and Leighton, and what was elicited from Mr Cady in cross-examination. But there was no objective evidence about when construction began, or when it was completed. A "Project Audit Schedule" in the project plan (prepared by Kane) described works beginning in March 2008 and ending in September 2008, so it is clear that work either started late or took longer than anticipated (something which is entirely unsurprising). The photograph was undated, and the time of year is not otherwise evident from what it depicts. It would obviously be difficult, even for men who worked on the site daily in 2008, to recall, many years later, the date of the partially constructed pavilion shown in the photograph without having a clear idea of when work started and finished. It would be easy (for example, by reference to a building certificate) to seek to fix that date, but this did not occur.
An alternative and potentially more powerful submission may have been available, corroborated by the evidence of Mr Leighton. One would expect concrete pours in a relatively small structure such as the Kiama showground to take place once, and early in the construction sequence. Those considerations may suggest that there is something inherently improbable in Mr Fogg's recollection. However, once again, it might be inferred that it would not be difficult to prove, by reference to primary records, when (say) concrete was last poured on the site. This was not done. Moreover, absent incontrovertible evidence as to timing, the submission would be equivocal. Mr Fogg was familiar with building sites and the possible sequences of construction, and it may even be that the unusualness of a delivery on partially constructed concrete steps was something which was regarded by him as remarkable (his cross-examination touched upon this, and he gave evidence of two different ways in which the lower step might have been constructed). It is not necessary to say more, because this submission was not advanced in submissions on appeal.
To my mind, a second consideration - the absence of any precise evidence of the relevant dimensions of either truck or step - is fatal to Hutchison's submission based on the presence of the bottom step. There does not appear to have been any evidence of the dimensions of the truck Mr Fogg was driving on 13 October 2008, or in particular how far back the tray extended behind the wheel base or, for that matter, the width of the tray (both dimensions are highly relevant in determining whether the rear corner of the tray could have been backed into the recess in the top step). As a matter of ordinary experience, there are large trucks with flat trays which extend some distance back from the remainder of the undercarriage of the truck.
Mr Fogg's evidence was firm, although based on his belief and estimating from memory. He gave the following evidence: "Q. Do you say you would have been able to back your truck into a similar position if that bottom concrete step had been in place on the day of the accident? A. No, I believe me wheels would have hit it. … Q. You're saying that you couldn't have got your truck into the position that it is shown on exhibit DA if that bottom concrete step had been present on the day of the accident? A. That's what I believe, yes. I don't know how long the truck tray was from the wheel back, but I'm estimating by my memory that I would have had to have to - that step could not have been there."
The evidence also did not include any precise measurements of the depth of the lower step. As constructed, it appears that the lower step was designed to permit spectators to sit on it, but even that is surmise. It is not possible to derive with any accuracy its depth. Although photographs were in evidence, the constraints upon the use which may be made of photographic evidence are familiar: see Yarrabee Coal Company Pty Ltd v Lujans [2009] NSWCA 85; [2009] Aust Torts Rep 82-024 at [20]-[21].
Given those areas of uncertainty, it is entirely possible that Mr Fogg's 12 tonne flat top truck could have been reversed so that the rear corner of the tray protruded into the recess in the top step, even if the lower step were present, despite Mr Fogg's belief to the contrary some five years later.
Odd though it may at first seem, the nature of appellate litigation is that there may be a dispute as to whether something is an "incontrovertible fact" so as to engage the principles of review in accordance with Fox v Percy. If so, it is for the party challenging the findings of primary fact to establish that the fact is truly incontrovertible. Hutchison has failed to establish that the account given by Mr Fogg is inconsistent with incontrovertible facts.
The third consideration is that this was not a case where there was no challenge to the accuracy of the recollections of Messrs Cady, Brownlee and Leighton. The primary judge was correct to observe that those witnesses had given fluctuating evidence. Mr Cady had given inconsistent accounts to an investigator in 2012 and to the plaintiff's solicitors in 2014, and inconsistent evidence in chief and in cross-examination. Mr Brownlee had signed reports of the incident four days after it occurred, which he said some five years later to have been wrong. It was also demonstrated at the trial that Mr Brownlee was a man who found himself able to give clear evidence of matters demonstrated by the contemporaneous documents to be wrong (for example, whether the incident occurred in the morning or the afternoon, and whether his company used plasterboard weighing more than 44kg at the site). Mr Leighton readily conceded in cross-examination that as far as he had seen, Mr Fogg's accident was very minor, he accepted that he made no contemporaneous notes and did not keep a diary. During his cross-examination, counsel for Hutchison made it plain that it was not necessary to put all aspects of Mr Fogg's case to him in accordance with Browne v Dunn (1893) 6 R 67.
In those circumstances, it was entirely open to the primary judge to conclude that "much, if not all, of their evidence is entirely reconstructed". Far from their evidence being uncontested, the gravamen of their cross-examination was that their evidence was reconstructed, a submission accepted by the primary judge. Indeed, any other conclusion would have been remarkable. This is not a case where a dramatic event happened years ago at a work site. To the contrary, the driver of a delivery truck, who was only intermittently on site, fell and sprained his ankle while delivering plasterboards. He refused treatment, continued the delivery, and drove off. There is no good reason why any of the men on site aside from Mr Fogg himself would have any clear recollection of any aspect of the incident.
Thus this is not a case where the primary judge was "compelled", or for that matter "all but compelled", to find that the lower step was in place at the time of Mr Fogg's accident and that his accident could not have taken place in the manner he had described. Contrary to Hutchison's submissions, there was no incontrovertible fact or uncontested testimony inconsistent with Mr Fogg's case.
The balance of this aspect of the appeal complained of the inadequacy of the reasons of the primary judge, his Honour's failure to "grapple" with the competing cases, and a failure sufficiently to deal with submissions based on the presence of the lower step. For the reasons which follow, I would reject these submissions.
Hutchison relied upon passages of this Court's judgment in Murray v Sheldon Commercial Interiors Pty Ltd [2016] NSWCA 77, concerning the principle that where there is a real conflict in the evidence, it is necessary to "engage with, or grapple or wrestle with the cases presented by each party". But this is not a case where the primary judge merely recited the competing documentary and testimonial evidence and expressed a preference for one as opposed to the other. The primary judge in terms relied upon the considerations mentioned above, and gave prominence to the fact that the contemporaneous documents prepared by Mr Brownlee and by Mr Fogg broadly corroborated Mr Fogg's testimonial evidence. His Honour devalued the reconstructed evidence of Messrs Cady, Brownlee and Leighton. His Honour also relied upon the medical evidence being consistent with the biomechanics of the accident as described by Mr Fogg.
Subject to what was put as to the failure to deal with Hutchison's submissions based on the lower step, the reasons of the primary judge adopted an approach entirely in accordance with what was said in Fox v Percy at [31], reasoning so far as possible on the basis of contemporaneous materials, objectively established facts and the apparent logic of events, as well as relying upon his assessment of Mr Fogg as a reliable witness.
I turn to the submissions based on the lower step, which were developed at considerable length in written and oral submissions on appeal. In Baker v David [2015] NSWCA 235 at [24] Meagher JA said, with the agreement of McColl JA and Sackville AJA, that: "In Whisprun Pty Ltd v Dixon [2003] HCA 48; 77 ALJR 1598 at [62]-[63] Gleeson CJ, McHugh and Gummow JJ described the trial judge's obligation properly to consider a party's case as a 'paramount judicial duty'. That does not mean that the judge has to deal with every argument and issue that might arise in the course of a case. However, 'where an argument is substantial or an issue is significant, it is necessary to refer to and assign reasons for the rejection of the argument or the resolution of the issue': per Nettle JA (Batt and Vincent JJA agreeing) in Hunter v Transport Accident Commission [2005] VSCA 1; 43 MVR 130 at [21]."
The focus on appeal was quite different from what occurred at trial. At trial Hutchison's first point was that Mr Fogg was not a witness of truth, because of his alleged collusion with Ms deSouza, although its alternative submission based upon the presence of the bottom step was prominent in its submissions. However, a different approach was adopted at trial by the other parties. Immediately after Mr Fogg had (while being cross-examined by Kane) insisted that the bottom step had not been constructed, senior counsel for Kane said to his Honour: "Mr Marshall foreshadowed there might be an issue, whether the bottom level of concrete was constructed at the time. In light of what Mr Fogg says was the arrangement, that is, there was a plywood-line ramp sitting on the ground coming up to the top level of the verandah, it seems not much to matter whether it's constructed on the ground or on the bottom course of concrete and I don't plan to make anything of it."
In closing address, Mr Fogg's counsel referred to the absence of any evidence from Kane as to when the lower step on the terrace had been constructed, and submitted that, in any event, the matter was of no significance. Of course, the reaction of the other parties to Hutchison's thesis based on the presence of the lower step did not absolve the primary judge from dealing with the submission. But it does help to explain why less prominence was given to it in his Honour's reasons.
Having regard to the obvious limitations upon the evidence of Messrs Cady, Brownlee and Leighton, I do not think it was necessary to do more than the primary judge did to resolve the dispute as to primary fact. It is true that it may have been desirable for the primary judge to have dealt at slightly more length with the force of what had been put by Hutchison in relation to the lower step. But the conclusion that the recollections of Messrs Cady, Brownlee and Leighton were entirely reconstructed, coupled with the considerations mentioned above, necessarily amounts to a rejection of Hutchison's case based on the lower step. It is to be recalled that no party placed reliance on Mr Cady's evidence at trial, and the recollection on the part of Messrs Brownlee and Leighton that deliveries were made by a long ramp on the north eastern corner of the pavilion was inconsistent with the contemporaneous document signed by Mr Brownlee referred to above, on which the primary judge relied.
In Sheldon at [67], it was said: "On the other hand, where there has been a fair attempt by a judicial officer who is plainly trying conscientiously to make findings of fact, not lightly is it to be inferred that the process has miscarried. Where points which are raised on appeal were not at the forefront of the submissions at trial, less weight is to be given to the failure by the primary judge expressly to have regard to them."
On any view, the first sentence of that paragraph is applicable. On balance, I regard Hutchison's submissions based on the lower step to be so closely related to the matters addressed by the primary judge (namely, the document signed by Mr Brownlee and the conclusion that the recollections relied on by Hutchison were wholly reconstructed) that it was not necessary for the primary judge to do more than he did.
In oral submissions Hutchison pointed also to the failure to discount the probative value of Ms deSouza's handwritten account of Mr Fogg's accident, because in one respect she had been found to have given false evidence. No objection was made that this fell outside the scope of the grounds of appeal, although at least arguably it did.
It is best to deal with this submission substantively, not least because there is a short answer to it. The fact that in 2013 Ms deSouza was found to have given false evidence about one aspect of the events does not impact upon the probative value of a detailed account prepared, at the request of Mr Farrugia, days after the incident, particularly when it is noted that details of the account accord with the handwritten documents dated 17 October 2008 signed by Mr Brownlee which could not have been seen by her: see Sangha v Baxter [2009] NSWCA 78 at [155]-[156].
I would dismiss these grounds of appeal.

Duty, breach and causation (grounds 4-9)

Section 5B of the Civil Liability Act 2002 (NSW) applied to the analysis of breach of duty against Hutchison. That section provides: "5B General principles (1) A person is not negligent in failing to take precautions against a risk of harm unless: (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person's position would have taken those precautions. (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things): (a) the probability that the harm would occur if care were not taken, (b) the likely seriousness of the harm, (c) the burden of taking precautions to avoid the risk of harm, (d) the social utility of the activity that creates the risk of harm."
The primary judge dealt with duty, breach and causation relatively concisely. His Honour said at [136] that although Mr Fogg and Mr Cady retained some independent discretion as to how and where goods were unloaded from the truck, "that discretion was hemmed in, in important respects, by the instructions received from Hutchison's site foreman, in particular as to where deliveries were to be made." His Honour then said, at [136]: "The degree of control exercised by Hutchison over the delivery process carried with it an obligation to take reasonable care to prevent foreseeable risks of injury to those engaged in that process. Put another way, Hutchison's duty was to take reasonable care to ensure that deliveries were made at a location on the site and in a manner that did not carry an unreasonable risk of injury."
The primary judge then identified at [137] the relevant risk in this case as "the risk that the Plaintiff would suffer injury by virtue of losing his footing on the uneven surface on which he was directed to unload the heavy and unwieldy plasterboard products." His Honour found that that risk was one that was foreseeable and not insignificant. His Honour also found that it was "a risk that could have been easily obviated". His Honour identified two courses of action open to Mr Brownlee at [138]-[139]: "If it be the case that Mr Brownlee directed the Plaintiff and Mr Cady to unload where they did as a consequence of the presence of the glazier's truck, the reasonable step he ought to have taken was to wait until the loading dock was available for use. If it be the case that Mr Brownlee directed the unloading where he did for the sake of convenience, unconnected with the presence of the glazier's truck, then he ought not to have done so. The loading dock or some other less risky means of delivery ought to have been used, even if this meant that the plasterboard was delivered to a location less convenient for Hutchison's purposes. While I do not propose to speculate as to what alternative means (other than the loading dock) might have been available to facilitate the unloading, in my view it cannot have been beyond the wit of those involved to have devised a safer method with relative simplicity and speed."
Finally, the primary judge stated without further explanation that the breach was causative of Mr Fogg's injuries and that it was appropriate that the scope of its liability extend to the harm caused to him.
Hutchison challenged every aspect of the primary judge's reasoning as to duty, breach and causation ("we say all the steps along the way Hutchison should have been successful in terms of its arguments on breach, the duty, risk of injury, breach and causation"). Even so, these grounds may be dealt with compendiously.
First, although Hutchison was critical of any analogy being drawn with the situation in Thompson v Woolworths (Q'land) Pty Ltd [2005] HCA 19; 221 CLR 234, which had been cited by the primary judge, it made no submissions, in writing or orally, against the formulation of duty articulated by his Honour. That formulation is entirely orthodox. It accords with the formulation of duty in Leighton Contractors Pty Ltd v Fox [2009] HCA 35; 240 CLR 1 at [21] and [48].
Secondly, Hutchison's criticism of the identification of the relevant risk of harm focussed upon ambiguity said to attach to the words "the uneven surface" in [137] reproduced above. It was put that it was necessary "to look at the risk of harm as being all the uneven surfaces that Mr Fogg might encounter in the process of him delivering this piece of plasterboard", and that it was unclear what precisely was meant by the primary judge. Counsel for Hutchison acknowledged when advancing this submission that "I might be over reading this". I agree. The evidence accepted by the primary judge established that there was a level surface, near the temporary loading dock, which could have been used to unload the plasterboard, save for the glazier's truck occupying the dock. The area where Mr Brownlee directed the delivery to occur was an uneven surface. It was uneven because of the 60mm drop between the "lip" of the upper step and the concrete on which pavers would in the future be laid, and it was uneven because of the "hob" where the windows were to be installed. That was the unevenness to which the primary judge referred. There was no error in that formulation of the risk of harm.
Thirdly, the written submissions of Hutchison at trial included the following: "40. Hutchison accepts that within the terms of s 5B(1)(a) a risk of harm that a person could in unloading sheets of plasterboard roll his ankle is foreseeable. … 43. Hutchison accepts that within the terms of s 5B(1)(b) that the alleged risk of harm was not insignificant."
It is not open to Hutchison on appeal to claim there was any error in the approach taken by the primary judge to subss 5B(1)(a) or (b) given its stance at trial.
Fourthly, the primary judge identified two precautions that a reasonable person would have taken: waiting until the loading dock was available for use, or utilising some alternative means of delivery. The reasonableness of those precautions accorded with the evidence of Mr Brownlee, who gave evidence that a wooden ramp had been constructed at the north eastern corner so as to provide a smooth surface over the verandah, and that he regarded himself as "having the authority to stop Hutchison's suppliers from doing something on site that [he] regarded as unsafe".
The submission advanced by Hutchison was that the loading dock was 20-30m away from where Mr Brownlee had directed the plasterboard to be delivered, and that it was unreasonable (and indeed unsafe) for that dock to be used and for Messrs Fogg and Cady to carry it through the site to the northern end. I do not accept the submission. There is nothing unreasonable in requiring heavy building materials to be delivered and temporarily stored close to the loading dock until needed for use. If Hutchison wished the boards to be delivered to a different location, then, again, I see no error in the primary judge concluding that a reasonable person would have devised a safer method to do so than one which required the men to walk across an uneven surface. Indeed, the presence of the temporary loading dock and the plywood over the verandah confirms the reasonableness of such steps.
It was put, repeatedly, that Hutchison was "just another contractor". The point of the submission was to contrast Hutchison's role with that of the head contractor and occupier of the site, Kane, and Mr Fogg's employer Plastmasta, in support of a submission criticising the outcome that the claims against Kane and Plastamasta were dismissed. However, the delivery made by Messrs Fogg and Cady was to Hutchison, and the primary judge found that Hutchison's employee directed the two men to unload their delivery in a place and at a time when they were exposed to the risk posed by the uneven surface.
Hutchison also submitted that the task being carried out by Messrs Fogg and Cady was relatively simple, and one at which they were experts, and one which they had carried out many times that day, in order to challenge the finding that a reasonable person would have taken one of the two precautions identified by the primary judge. Hutchison relied on what had been said in Transpacific Industrial Solutions Pty Ltd v Phelps [2013] NSWCA 31 at [52] about everyday experience in carrying bulky items, and on what was said in Patrick Stevedores Operations (No 2) Pty Ltd v Hennessy; FBIS International Protective Services (Aust) Pty Ltd v Hennessy [2015] NSWCA 253 at [52], [53] and [80] concerning the need to establish that it was the breach of duty by the defendant which caused the damage, noting that a defendant's duty was limited by the expectation that people will exercise reasonable care for their own safety. Those submissions do not undercut the force of the findings of the primary judge, that Mr Brownlee directed the men to unload the plasterboard at a place other than the temporary loading dock where there was a level surface. This is not a case where the precaution not taken of which complaint is made is something obvious (such as the risk of a man cutting himself while chopping timber to which Kitto J referred in Electric Power Transmission Pty Limited v Cuiuli (1961) 104 CLR 177 at 180-1).
Fifthly, it was submitted that more needed to have been said to determine causation, on which the onus fell upon Mr Fogg in accordance with s 5E of the Civil Liability Act. I do not agree. It was said that Mr Fogg had participated in unloading some 20 sheets of plasterboard at that location that morning. However, that fact does not displace the self-evident consideration namely, that it was the uneven surface between the top of the "lip" and the concrete below it on which Mr Fogg stepped that, on the findings of primary fact made by the trial judge, caused his fall. This is a case where causation is, with respect, obvious, as well as being somewhat intertwined with breach (as counsel for Hutchison acknowledged). There was no evidence to suggest that had Mr Fogg used the temporary loading dock, he would have fallen. To the contrary, he would not have been able to step onto the "lip" adjoining where the pavers were going to be laid.
I would dismiss these grounds of appeal.

Contributory negligence (appeal ground 10, cross-appeal ground 1)

The primary judge applied s 5R of the Civil Liability Act, observing that the standard of care required by Mr Fogg was that of a reasonable person in his position, and that the matter was to be determined on the basis of what Mr Fogg knew or ought to have known at the time. His Honour's reasoning in relation to the finding of contributory negligence was found in [152]-[154]: "The Plaintiff's previous experience when delivering to this site had involved use of the loading dock, which was occupied on this occasion by the glazier's vehicle. Compliance with the Plaintiff's own training and instruction ought to have seen a delay in the delivery until the glazier's truck had left so that the loading dock could be used or, if Mr Brownlee would not agree with that approach, a departure of the Plastamasta vehicle with the Plaintiff and Mr Cady on board with delivery to take place at a later time. Rather than taking this course, the Plaintiff, despite his misgivings, acceded to Mr Brownlee's proposal to carry out the unloading at a different place at the site, with that location having an uneven surface which rendered it less safe for the delivery of heavy boards of the type which were to be unloaded. In these circumstances, I am satisfied that the Plaintiff failed to take reasonable care for his own safety, so that a finding of contributory negligence on his part ought be made."
In determining the appropriate apportionment for contributory negligence, his Honour was satisfied that "the primary and substantial responsibility" for Mr Fogg's fall and subsequent injuries lay with Hutchison which, through Mr Brownlee, exercised control over the site including directing the Plastamasta truck to a point other than the usual delivery point. His Honour found the appropriate apportionment to be 85% to Hutchison and 15% to Mr Fogg.
Mr Fogg challenged the finding of contributory negligence, and Hutchison challenged its quantification. It is appropriate first to deal with Mr Fogg's challenge to the logically anterior finding of contributory negligence.
Mr Fogg contended that appellable error could be established from the fact that his Honour had failed to have regard to salient matters. Those matters were (i) the fact that Mr Fogg was the least experienced of the three men (Mr Cady, Mr Brownlee and Mr Fogg) involved in the unloading of building material; (ii) Mr Cady was Mr Fogg's senior in terms of experience; (iii) both of Mr Cady and Mr Brownlee had directed Mr Fogg to the place where the unloading occurred; (iv) Mr Brownlee, who obtained two pieces of wood to place within the recessed step, had thereby implicitly recognised that the place chosen by him for unloading was potentially unsafe; and (v) Mr Fogg did "all that he reasonably could in the circumstances in suggesting an alternative place for the unloading operation, but he was overruled". In light of those matters, Mr Fogg submitted that the "requirement of 'reasonableness' imposed by s 5R(1) Civil Liability Act has been implicitly, perhaps even expressly, overlooked by his Honour".
I would reject the submission. The primary judge in terms had regard to the fact that Mr Fogg had on previous occasions used the temporary loading dock at the site. His Honour also had regard to the training and instruction given to Mr Fogg in relation to forming his own assessment of what was appropriate. Finally, his Honour relied upon the fact that Mr Fogg, by his own account, had misgivings about the course proposed by Mr Brownlee. I do not agree that there was any overlooking of what a reasonable person in the position of Mr Fogg would have done. In those circumstances, it is not necessary to pause to consider the difference, if there can be one, between an "express" and an "implicit" overlooking of reasonableness, or the double-counting in the five salient matters on which Hutchison relied. The fact that the relative responsibility attributed to Hutchison is almost six times greater than that attributed to Mr Fogg reflects Mr Fogg's relatively junior position and the substantial control exercised by Mr Brownlee.
For its part, Hutchison contended that Mr Fogg had failed to keep a proper lookout for his own safety, while walking on an inevitably uneven building site, and so was at least equally responsible as Hutchison. I would reject this contention as well. The question here was the unnecessary exposure of Mr Fogg to the additional risk caused by the uneven surface where Mr Brownlee directed the unloading to occur, as opposed to the temporary loading dock (or some other mechanism). To the extent that Hutchison relied upon Mr Fogg successfully negotiating the verandah some 20 times prior to his fall, that does not undercut the force of his being exposed unnecessarily to the risk presented by the uneven surface.

Apportionment in accordance with s 151Z (ground 11)

This ground of appeal contends that there was error in failing to attribute any responsibility to Plastamasta "particularly in circumstances where [the primary judge] found that the direction given by Mr Brownlee as to where to unload his vehicle had also been made by [Mr Fogg's] offsider, an employee of [Plastamasta], Mr Cady".
In written submissions, Hutchison emphasised that it was both Messrs Cady and Brownlee who directed Mr Fogg where to back the truck, maintaining that if Hutchison could be liable for the direction as to where to park, Plastamasta must also be liable. The submissions concluded: "how Hutchison could have been found liable and Plastamasta not liable with its non-delegable duty of care on the basis of this evidence defies any logic".
This submission overlaps with the submission earlier addressed that Hutchison was "just another contractor". I do not accept it. Mr Brownlee directed the men from Plastamasta where to park their truck. Mr Cady, who had walked from the initial place of delivery on the southern side of the site to the northern end while Mr Fogg had driven the truck, assisted Mr Brownlee in giving directions to Mr Fogg. There is nothing in the evidence to suggest that somehow Mr Cady and Mr Brownlee jointly decided where to direct Mr Fogg to park the truck. The fact that both men participated in guiding Mr Fogg as he reversed has no bearing on s 151Z whatsoever.

Future medical expenses, future economic loss and future care (cross-appeal, grounds 2, 3, 6, 7 and 8)

Grounds 4, 5 and 9 of the cross-appeal were abandoned shortly prior to the hearing. I deal with each of the grounds which were pressed in turn.

Future medical expenses

The primary judge allowed $116,611.30 for future out-of-pocket expenses. Three of the four components that made up that amount were not in dispute (equipment costs, orthotics and boots, and potential knee procedures). The primary judge referred at [204] to the "major controversy under this heading" as the plaintiff's claim for ongoing medical expenses of $204,419.05 as opposed to Hutchison's calculation of $46,750. The primary judge's reasoning was as follows: "Having considered the competing approaches on this issue, I am satisfied that a greater allowance should be made than that proposed by Hutchison. At the same time, I do not think that the evidence supports an allowance of the proportion contended for by the Plaintiff. I am satisfied that an appropriate allowance for future medical expenses is the sum of $74,800.00, calculated upon the basis of 935 x $80.00."
Mr Fogg made two submissions on appeal. The first was that no reasons had been provided for the estimate of $80 per week. The second was that it was said that Mr Fogg was entitled to compensation for (a) general practitioner attendances once every three months at a cost of $70 per visit (a weekly cost of $5.38), (b) psychological counselling every two months at a cost of $222 per session (a weekly cost of $25.62), and (c) hydrotherapy, two to three times per week at a cost of $5 per visit (a weekly cost of $12.50), as well as the expense of medication; it was said that the $80 determined by the primary judge was "grossly inadequate and against the weight of the evidence".
This aspect of the appeal resembles Kwong v Abdulwahab [2016] NSWCA 107. There is some force in Mr Fogg's complaint about the absence of reasons supporting the figure of $80, just as there was in Kwong in comparable circumstances: see at [92]. That said, I should not be taken to be implying that elaborate reasons are required when identifying an integer in a calculation of future loss in a case such as the present where the evidence is scant and the imponderables loom large.
But a failure to provide adequate reasons is not fatal to this aspect of the judgment. Hutchison took an approach consistent with what occurred in Kwong in order to sustain the proposition that the quantification was, if anything, generous to Mr Fogg. It also made it clear that it did not contend for a reduction in the amount awarded.
As Hutchison observed, Mr Fogg's claim was little more than a recitation of the medical expenses he was in fact incurring in 2013, when he prepared his statement. It was necessary both to connect the medical expenses with the injury suffered in 2008 and also to establish how long it would be necessary for those expenses to be incurred.
In its written submissions, Hutchison stated that there was no evidence that hydrotherapy was of any assistance to Mr Fogg's condition. Hutchison also explained that there was no medical opinion supporting a claim for psychological counselling for the rest of Mr Fogg's life, and, to the contrary, Dr Dragutinovich had recommended in his report of 19 April 2013 "one consultation per month for 2 years", a period which had expired at the conclusion of the trial. Dr Lee was of the opinion that no future treatment was needed, while Dr Pickering saw a need for "at least a further 30 sessions after settlement". Even if the opinions of Drs Dragutinovich and Lee were rejected and Dr Pickering favoured, an additional 30 sessions (at the uncontroversial rate of $222 per session) amounted to something in the order of $6,600, to be contrasted with an amount in excess of $23,000 underlying Mr Fogg's calculation. Likewise, the amount claimed for hydrotherapy was in excess of $10,000, without any evidence that it is related to Mr Fogg's injury.
Mr Fogg made no response to those submissions, although they had been advanced in writing before the appeal was heard. Hutchison's submissions, which I would accept, demonstrate that the majority of Mr Fogg's claims for medical and psychological treatment were unsupported by the evidence.
It is also necessary to have regard to the costs of medication claimed by Mr Fogg. As refined during the hearing of the appeal, Mr Fogg claimed a weekly medication cost of $144.98, comprising: "(a) Lyrica - $502.50/month = $115.96/week (b) Nexium - $55.00/month = $12.69/week (c) Aspirin - $5.80/month = $1.33/week (d) Avanza - $65/month = $15/week".
There was no response to Hutchison's submission that there was no evidence connecting Lyrica or Nexium with Mr Fogg's injuries. In oral submissions, junior counsel for Mr Fogg pointed to statements by Dr Dixon (an orthopaedic surgeon) said to support the need for Lyrica and Nexium. Dr Dixon said no more than that in 2009 and in 2013 Mr Fogg took Lyrica for diabetes and Nexium for reflux. I do not consider that that evidence sufficed to establish a connection between those two drugs and Mr Fogg's injury; as I read Dr Dixon's reports, he was at pains to state merely that he was listing Mr Fogg's current treatment.
If the amounts claimed by Mr Fogg for Aspirin and Avanza are added to the 30 counselling sessions mentioned by Dr Pickering, and a more generous allowance of $9.69 per week for consultation with a general practitioner, then the total amount is $16.33 x 935 + $9.69 x 935 + $222 x 30 = $30,988. The $74,800 awarded by the primary judge is more than double that amount.
This component of damages should stand, notwithstanding the absence of reasons. This accords with what was done in Kwong: see at [94]-[95] and [107]. The submission that the $80 awarded by the primary judge was grossly inadequate and against the weight of the evidence must be rejected. To the extent that there has been a failure to give reasons, it is not one that has been shown to work any injustice to Mr Fogg; to the contrary, if anything, the award is generous to him.

Future economic loss

The primary judge allowed the sum of $297,676.80 for future economic loss. That claim was based upon earnings of $580 net per week, a period of 729.6 weeks and a 15% deduction for vicissitudes. Ultimately, Mr Fogg did not dispute any of those elements in the calculation. This ground of the cross-appeal turned upon a "modest allowance" made by the primary judge in relation to Mr Fogg's residual earning capacity. His Honour said at [236] that: "(d) Hutchison's assertion of the Plaintiff's residual working capacity has a limited foundation (for reasons explained concerning past economic loss) - given the lengthy period to be considered for future economic loss, I do consider some modest allowance should be made for the Plaintiff's residual earning capacity; (e) I will reduce the sum of $580.00 to $480.00 to allow for this aspect."
Mr Fogg contrasted that calculation with the reasoning underlying the claim for past economic loss (which was unchallenged). In that aspect of his reasons, the primary judge concluded that "I do not think that the plaintiff has a past residual earning capacity that he was practically capable of exercising. This evidence does not rise above a theoretical ability to perform certain work": at [225]. His Honour accordingly performed the calculation of past economic loss on the basis of $580 net per week.
Mr Fogg contended that, by parity of reasoning, a figure of $580, rather than $480, should have been allowed for future economic loss.
There is a high degree of inevitable imprecision in all such calculations. As Hutchison observed, these amounts are often assessed in a broad brush fashion by way of a cushion. However, in my view there is a logical inconsistency between the assessment of an absence of any past residual earning capacity that was practical as opposed to theoretical, and the allowance to be made in the future. The primary judge rightly regarded Mr Fogg as a man with a strong employment history, notwithstanding his limited educational achievements. He had been continuously out of work since the injury, some six years prior to the trial. The reasons of the primary judge do not provide a basis for distinguishing between the absence of any practical residual earning capacity for the previous six years and the modest allowance for the future. Moreover, the onus of demonstrating a failure to exercise a residual earning capacity, whether past or future, lies on the defendant: Mead v Kearney [2012] NSWCA 215 at [16] and [25]. The conventional allowance for vicissitudes addressed the ordinary uncertainty relating to future contingencies.
I would allow this ground of the cross-appeal.

Future care

The primary judge rejected Mr Fogg's claim for future domestic assistance and care. Mr Fogg had put forward a claim of 2.25 hours per week. That time was calculated as comprising one hour for cleaning and laundry, one hour for meals, and 15 minutes for general maintenance.
The primary judge rejected this claim, giving the following reasons at [257]-[258]: "Ms DeSouza agreed under cross examination that commercial care would not be sought for the relatively short periods involved each day to assist with dressing the Plaintiff, helping him around the home or in food preparation not otherwise carried out by the Plaintiff or Ms DeSouza (T355). I bear in mind, as well, the fact that Ms DeSouza has her own physical disabilities which may bear upon the use of commercial services in the future. I take into account, as well, the fact that the Plaintiff and Ms DeSouza have lived in recent years a type of semi-itinerant existence residing in caravans and caravan parks. That lifestyle may operate against the practical prospect of commercial care being actually sought in the future. It is for the Plaintiff to establish the claim for future assistance or care to be provided on a commercial basis: Miller v Galderisi at [16]ff. The small number of hours involved (2.25 hours per week), and the fragmented basis upon which care would be sought, operates against a finding that commercial assistance will be engaged for this purpose. This was the practical effect of Ms DeSouza's evidence (T355)."
Mr Fogg challenged this reasoning, on the basis that it over-stated the concessions made by Ms deSouza, failed to have regard to Ms deSouza's own physical disabilities, and her evidence that if funds were available they would obtain commercial care.
The primary judge's conclusion was squarely based on his Honour not being satisfied that Mr Fogg and Ms deSouza would seek commercial assistance. His Honour was well-placed to make that finding. When finding that Ms deSouza had given false evidence as to why she had prepared the handwritten statement, the primary judge said (at [59]) that he had considered the evidence of Ms deSouza with particular care on all issues. Moreover, there is force in the considerations that the amount of hours was small, and that because the couple have for some years moved from place to place, there would be difficulties in arranging for commercial care. I see no appellable error in his Honour's reasoning or rejection of this head of damages.

Costs (cross-appeal grounds 10 and 11)

At first instance, following delivery of the substantive judgment, Mr Fogg had sought orders that Hutchison pay the costs of the successful defendants, Kane and Plastamasta. The primary judge, by reference to Council of the City of Liverpool v Turano (No 2) [2009] NSWCA 176, considered that in order to engage the discretion to make a Bullock or Sanderson order, it was necessary for it to have been reasonable for the plaintiff to have brought the proceedings against the successful defendant, and that there must also have been some conduct on the part of the unsuccessful defendant which would make it fair to impose liability on it for the costs of the successful defendant. The primary judge accepted that it was reasonable for Mr Fogg to have brought proceedings against both Kane and Plastamasta as well as Hutchison. However, his Honour was not persuaded that there was conduct on the part of Hutchison which would make it fair to impose liability on it for the costs of the successful defendant.
No challenge is made on appeal to the orders made in relation to Plastamasta, and so it is unnecessary to deal with his Honour's reasons in that regard. In relation to Kane, his Honour said that: "Insofar as the question whether the conduct of Hutchison played any part in [Mr Fogg] bringing and persisting in its claim against Kane, I note that the claim against Kane itself involved a number of contentions which went beyond the question of the person who gave a direction to [Mr Fogg] as to where to park the vehicle."
On appeal, as at first instance, Mr Fogg pointed to the difficulty that emerged on the pleadings as to the identity of the person who directed Mr Fogg to park his truck. Both Hutchison and Kane denied that one of their employees directed Messrs Fogg and Cady to an area away from the temporary loading dock. It submitted that had this information been made available to Mr Fogg, "there was every reason to anticipate that Kane would have been released from the proceedings".
Mr Fogg acknowledged the discretionary nature of the power to award costs, but submitted that appellate intervention was available because the primary judge had failed to take into account relevant considerations. The only consideration adverted to was the identity of the person giving directions to Mr Fogg. The difficulty with that submission is that it is plain that his Honour did have regard to that consideration. Indeed, substantially the same submission advanced on appeal was recorded by the primary judge at [6] of his reasons on 12 August 2015.
Further, there is no dispute that Mr Fogg's claim against Kane, as head contractor and occupier of the site, went substantially beyond one based upon the identity of the person directing Mr Fogg on 13 October 2008. As Hutchison points out, that claim continued to be advanced until final submissions, at which time it was well known that Mr Brownlee was a Hutchison employee. That claim was advanced, elaborately, especially at paragraphs 158, 159, 160(i)-(vii), 169 and 171-173 in Mr Fogg's written submissions.
No sound basis is established for interfering with the orders that Mr Fogg pay the costs of the successful defendants. I would dismiss these grounds.

Orders

For the reasons given above, I propose that Hutchison's appeal be dismissed, and that Mr Fogg's cross-appeal be allowed in part. The orders I propose will give the parties an opportunity to be heard as to the costs of the appeal and cross-appeal.
Shortly before the hearing of the appeal, Mr Fogg and Plastamasta signed orders consenting to judgment, thereby resolving the (separate) appeal which had been brought by Mr Fogg, which was listed to be heard concurrently with this appeal. At the parties' request, this Court agreed to delay making those orders until the delivery of judgment in the other appeal. Those orders are reproduced below.
The formal orders I propose are: In 2015/185608: 1. Appeal dismissed. 2. Cross-appeal allowed in part, in relation to the calculation of damages for future economic loss, and otherwise dismissed. 3. Direct the parties to file within 14 days an agreed calculation of the judgment in favour of Mr Fogg against Hutchison which should, in light of these reasons, be entered, or in default of agreement, short submissions identifying the amount for which each party contends judgment should be entered. 4. Direct the parties within 14 days to file proposed orders as to the costs of the appeal, and submissions not exceeding 4 pages in support of those orders. In 2015/195139, by consent: 1. Appeal allowed in part. 2. The order of Johnson J made on 12 August 2015 that the plaintiff pay the defendant's costs be set aside. 3. In lieu thereof, order that each party pay its own costs of the proceedings in the court below. 4. Appeal otherwise dismissed, with each party to pay its own costs.

Amendments 21 June 2016 - Headnote - holding 6 - "the even surface" replaced with "the uneven surface" 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: 21 June 2016

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