Maggiotto Building Concepts Pty Limited v Gordon

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAGGIOTTO BUILDING CONCEPTS PTY LIMITED v DESMOND GORDON

1 MEAGHER JA: I agree with Ipp AJA. 2 STEIN JA: I Agree with Ipp AJA. 3 IPP AJA:

The accident of 23 April 1993 and the claim for damages 4 This appeal and cross appeal concern a claim for damages arising out of an accident that occurred on 23 April 1993 at a building site in Mt Pritchard. 5 The appellant ("Maggiotto") had been engaged as head contractor to construct 35 home units upon the site. Maggiotto in turn engaged the respondent ("Gordon") to perform carpentry work to complete the "fit out" of some of the home units. Gordon was an experienced carpenter, who, as the trial judge put it, found it "financially more attractive" to work as a sub-contractor rather than as an employee. 6 On 23 April 1993 Gordon entered unit 33 in order to estimate the materials needed to perform the fit out. It was a double storey unit and, to the knowledge of Gordon, the staircase had not yet been installed. There was an unfenced void, involving a drop of about six feet, where the stairs were to be inserted. 7 Gordon first inspected a ground floor bedroom. To get access to this bedroom, Gordon had to traverse part of the void. The distance from where he was standing to the doorway of the bedroom where there was a floor on which he could stand was about two feet. He successfully stepped across this gap, looked around and made his estimate. 8 Gordon next decided to inspect a bedroom on the upper floor. To do so he had to traverse the void again, but in a different direction. This time, the width of the void was too wide for him to walk across. Moreover, there was no scaffolding available or other means of access to the bedroom. He had a plank with him on which he could have walked, but the plank was not long enough to bridge the void at the required position. 9 The bedroom in question was directly above the void. To get to a position where he could inspect it, Gordon edged his way across a ledge against the wall of the void. The ledge was below the bedroom and was about three inches wide and about four and a half feet long. When Gordon had edged his way to a point below the opening into the bedroom, he put his hands on to the floor above him and pulled himself up into the opening. He then made an assessment of the carpentry materials required. This having been done, he lowered himself back onto the ledge. His right hand slipped and he tumbled backwards, falling about six feet to the bottom of the void. He suffered what were described as "orthopaedic and psychiatric injuries". 10 Gordon commenced proceedings against Maggiotto for recovery of the damages he had sustained. He relied on breach of statutory duty, breach of contract and negligence. Delaney DCJ rejected the claims based on breach of statutory duty and breach of contract. His Honour, however, upheld the claim for negligence. He assessed damages at $460,792.00, but held that Gordon was guilty of contributory negligence to the degree of 50%. He therefore granted judgment in Gordon's favour and entered a verdict in the sum of $230,396.00. 11 Maggiotto appeals on the ground that Gordon was an independent contractor and for that reason Maggiotto owed no tortious duty of care to him. Alternatively, Maggiotto contends that Gordon voluntarily accepted the risk of injury. Maggiotto also appeals on the ground that the learned judge erred in his assessment of damages. Gordon cross appeals on the ground that Delaney DCJ should have upheld the claims based on breach of statutory duty and breach of contract. He asserts that on that basis the defences of voluntary assumption of risk and contributory negligence do not apply. In the alternative, Gordon challenges the finding that he was guilty of contributory negligence to the degree of 50%.

The claim for breach of statutory duty 12 Gordon contends that Maggiotto contravened reg 73 of the Construction Safety Regulations 1950 as amended. These regulations were made pursuant to the Construction Safety Act 1912 (NSW). Regulation 73 concerns "construction work". "Construction work" is defined by s 3 of the Act as including "building work". "Building work" is defined as: "work in constructing, erecting, installing, adding to, altering, repairing, equipping, finishing, painting, cleaning, signwriting, sheathing, spraying, dismantling or demolishing or any other prescribed operation that: (i) is done in relation to a building or structure, at or adjacent to the site thereof . … " 13 Regulation 73 provides: "Any person who directly or by his servants or agents carries out any construction work shall take all measures that appear necessary or advisable to minimise accident risk and to prevent injury to the health of persons engaged in such construction work …"

The regulation goes on to specify, "without limiting the generality of the foregoing", certain measures which such a "person" is required to undertake pursuant to the general obligation to "take all measures … to minimise accident risk and to prevent injury". These measures include the following:

(a) The provision of suitable and safe scaffolding for all work which cannot be done safely by a person standing on permanent or solid construction, except when such work can be done safely from ladders constructed in conformity with the Regulations (reg 73(1))

(b) The provision and maintenance of safe means of access to every place at which any person has to work at any time (reg 73(2)).

(c) The provision of means by fencing or otherwise for securing the safety of any person working at a place from which he would be liable to fall a distance of more than 1.8 metres (reg 73(3))

(d) The fencing, in prescribed manner, of open sides of walls and openings in floors onto which persons could accidentally walk and the open sides of stairways and stairway landings (reg 73(8)). 14 Gordon asserted that Maggiotto had breached reg 73 generally, by failing to take adequate measures to minimise accident risk and to prevent injury to the health of persons engaged in construction work, and, in particular, by contravening regs 73(1), 73(2), 73(3) and 73(8). 15 Maggiotto did not contend that a breach of reg 73 was not actionable. Nor did it contend that it had complied with the regulation. The only argument it raised at trial and on appeal in defence to the claim based on breaches of reg 73 was grounded on the application of the principles expressed in H C Buckman and Son Pty Limited v Flannagan (1974) 133 CLR 422. This argument of Maggiotto's was upheld by Delaney DCJ. 16 In H C Buckman and Son Pty Limited v Flannagan Barwick CJ (with whom McTiernan and Stephen JJ agreed) discussed the policy underlying the Scaffolding and Lifts Act 1912 (NSW) and the regulations thereunder, and in particular reg 73. He said (at 427): "For my part, I perceive that the Act and regulations purpose to place particular responsibilities upon the person actually carrying out the particular building work, that is to say, doing it himself personally, or by his servants or by those whose acts are in law are his acts. This seems to me an eminently practical and workable scheme of legislation. By imposing obligations on such persons in respect of the several sections of the total building enterprise the safety of all will be secured. I am unable to accept the view that the word 'agents' comprises the independent contractors who are themselves carrying out the building work which they have contracted to do".

17 The learned Chief Justice went on to say (at 428): "I agree with the majority in Davey v Skinner [1961] SR (NSW) 648 at 651 when their Honours said: 'Regulation 73 does not impose its obligations on an employer as such nor does it limit its safety measures to employees as such. Nor does it, for example, refer to a contractor as the person obliged to conform to its provisions. In broad terms it directs its provisions to any person who carries out any building work ... The obligation rests on the active person, that is the one who carries out the work in actual fact'. I agree with the majority, and am unable to accept the contrary view of the minority judgment in that case that Regulation 73 is directed to the principal contractor or building owner. Building work is so defined that it does not necessarily refer to the total work to be performed in a building, but the definition is suitably worded to enable each section of work being done, eg as 'painting, cleaning and signwriting', being regarded as building work so that the obligation to take the specific safety measures are imposed on that person who is carrying on or carrying out that particular work. It is not consistent, in my opinion, with that conclusion to include independent contractors who are carrying out particular building work as 'agents' of the building owner or contractor so as to impose on him the obligation which clearly will fall upon the independent contractors vis a vis the building work they are actually doing". 18 The argument advanced on behalf of Maggiotto was that Gordon was admittedly an independent contractor and the obligations to comply with reg 73, in so far as the carpentry to be done by Gordon was concerned, rested upon Gordon, he being the one carrying out the work in actual fact. 19 Gordon, in the written argument advanced on his behalf, relied on remarks made by Mason J and Jacobs J in the same case. 20 Mason J explained that the legislation confers no private right upon a sub-contractor against the head contractor "when the doing of the work which attracts the performance of the duty has been wholly delegated to the sub-contractor so as to impose the same duty on him and he does the work in breach of the duty in the absence of fault on the part of the builder". Where, however, the head contractor participates in the faulty construction work, a different result will follow. Thus, Mason J said (at 444): "From this material a jury could conclude that the appellant's breach of par. 17 did not solely arise because the respondent was in breach of the same provision; on the contrary a jury might well conclude that the appellants participated by act or approval in reducing the stability of the column without taking any step prescribed by par. 17". 21 Jacobs J made the same point. His Honour observed (at 446) that: "Where the exposure to accident risk occurs … as a result of the employee or sub-contractor having failed to perform the necessary acts performance of which has been properly delegated to him, then the exposure to accident risk of that employee or sub-contractor alone is not a breach of the statutory duty …"

Jacobs J went on to say (at 447): "It will generally be found in the case of an employee and it will often be found in the case of a sub-contractor that, though performance of the acts necessary to performance of some statutory duties may properly be delegated to them, the performance of other acts and the compliance with other statutory duties will remain the direct obligation of the employer or the head contractor as the case may be. Whether in any particular case this is so will depend upon the circumstances". 22 Earlier, Jacobs J (at 446) dealt with the situation where a person carrying out building work delegates work to a sub-contractor but still has a statutory duty not to expose that sub-contractor to accident risk. His Honour said: "When an employee is instructed to do building work in circumstances where the employer has a statutory duty to do acts or things in order to ensure their safety when engaged on the building work there must be more than an implication that they will take any necessary preliminary steps in order to ensure that the work which they are instructed to do is done in conditions where under the statutory duty of the employer is fulfilled. An employee must be particularly directed to do the specific work necessary in order to fulfil the employer's statutory duty and must be provided with all material, assistance and supervision necessary to ensure his ability to comply with the statutory duty. A sub-contractor must be under a particular contractual obligation expressed or necessarily to be implied from the nature of the work to carry out the preliminary work necessary to ensure that when he and those under him are engaged in the building work they will be so engaged in conditions which satisfy the statutory duty". 23 In my opinion, the reasons for judgment of Mason and Jacobs JJ are not inconsistent with those of Barwick CJ. They can readily be reconciled. 24 The essential point made by Barwick CJ was that whether a person was obliged to comply with the regulation depended upon whether that person was actually carrying out building work: see Hetherington v Mirvac Pty Limited [1999] NSWSC 443 per Wood CJ at CL. 25 Mason J held that where a person participates, whether by act or approval, in the building work carried on by the independent contractor to whom the work has been delegated, that person is duty bound by reg 73. There is nothing in this proposition that departs from anything said by Barwick CJ. 26 Jacobs J pointed out that, where a head contractor instructs some other person to carry out part of the building work, circumstances may arise that require preliminary steps to be taken to ensure that the work which the other person is instructed to do can be done safely. The issue then arises as to the responsibility for those preliminary steps. It must be a question of fact in each case as to whether the other person has been instructed to perform the preliminary steps as well as the work, the subject of the express instructions. 27 According to Jacobs J, the head contractor will only be regarded as having instructed the other person to perform the preliminary steps if that person was particularly directed to do the specific work "necessary in order to fulfil the [head contractor's] statutory duty". That is to say, according to his Honour, the head contractor will only avoid having a statutory duty in regard to the preliminary steps if the head contractor particularly directs the other person to take those steps. Additionally, the other person "must be provided with all material, assistance and supervision necessary" to ensure compliance with reg 73. 28 These remarks have to be seen in the context of the statement by Barwick CJ that under the regulations a head contractor owes no duty thereunder in respect of work delegated by it. Jacobs J was merely saying that a court will be slow to hold that instructions to another person to carry out specific work impliedly include instructions to perform the preliminary steps that may be required to make that work safe. His Honour observed that where the express instructions do not cover the preliminary steps, the head contractor may continue to owe statutory duties in regard to the work involved in those steps. Nothing in this approach departs from that of Barwick CJ. 29 It is not unusual for a head contractor to delegate a specific task to a sub-contractor and to say nothing about the ancillary work or preliminary steps necessary to ensure the safety of those who will be working on the delegated task. In that event, the task of doing the work necessary to complete the ancillary work or preliminary steps may well not be within the work delegated. In such a situation, were the head contractor not to be duty bound to comply with reg 73 in regard to the ancillary work or preliminary steps, there would be a gap in the security net that the regulation is intended to provide. The safety of all involved in the total building enterprise would then not be secured. The strictures expressed by Jacobs J are designed to prevent such a gap from opening. To ensure that the policy of the legislation, as enunciated by Barwick CJ, is fulfilled, the approach of Jacobs J should be adopted. 30 At this stage, it is apposite to say something about the work done by Maggiotto as the head contractor on the site. 31 Maggiotto had only two labourers on the site and their work was cleaning. All structural and construction work, involving all the various trades engaged to construct the 35 units, was being carried out by sub-contractors. This involved the excavation work, the form work and pouring of concrete, the formation of walls and bricklaying, roof trusses and the formation of the roof, and various aspects of carpentry work. Plainly, a great deal of co-ordination and supervision was required. This task was assumed by Maggiotto. 32 Frank Sgambellone was the Maggiotto foreman on the site. His task, according to his testimony, was "project management of trades and progress of job" He said that project management entailed "virtually control of sub-contractors, purchase ordering, liaising with architects, engineers, Department of Housing". Maggiotto, through Mr Maggiotto and Sgambellone, in fact gave directions as to when and where the work was to be done. Those persons, on Maggiotto's behalf, supervised and co-ordinated the various activities and trades involved. 33 In this process of supervision and co-ordination, Sgambellone instructed and permitted the various sub-contractors to go to the various areas where they were working whenever it was appropriate for them to do so. 34 Sgambellone said that he had a system which he adopted in determining when the fit out carpenter would commence his tasks. The system was to instruct the carpenter to commence his joinery work after the gyprock walls were lined. Sgambellone would, from time to time, as a carpenter would finish his work in one unit, instruct the carpenter to proceed to commence work on another unit. In particular, as regards Gordon, Maggiotto told him where and when to work. Sgambellone accepted that one of his tasks was to provide Gordon with continuity of work until he had completed his tasks. In cross-examination, when asked whether, when he was on site, he was under the direct control of Sgambellone, Gordon said: "If Mr Maggiotto was not there, yes I'd be under Frank's control". 35 It was put to Gordon in cross-examination that Sgambellone, the foreman, "was the person who provided you with all the materials you needed on site, didn't he". He replied in the affirmative. Sgambellone agreed with the proposition that Maggiotto supplied the materials with which the various trades on the site "carried out their various activities". Thus, it was part of Maggiotto's supervisory and co-ordinating function to supply Gordon with necessary materials. These would include scaffolding, when necessary. In the case of unit 33, scaffolding was patently necessary for the purposes of bridging the void 36 Therefore, on the undisputed evidence, Maggiotto co-ordinated and supervised the different trades required for the completion of all the building work on site, and supplied the materials necessary for the trades to carry out their work. In performing these tasks Maggiotto was, in my view, performing building work (and, hence, construction work) within the meaning of the definition in s 3 of the Construction Safety Act. 37 This case therefore differs from Almeida v Universal Dye Works Pty Ltd [2000] NSWCA 264 (belatedly relied on by counsel for the appellant) where Santow AJA pointed out (at para 143) that the none of the respondents had done any construction work. 38 Gordon was instructed merely to do the carpentry work at unit 33 and to do so without there being stairs in place. He was not directed to do the specific work necessary to protect himself from the dangers and risks caused by the void. Nor was he supplied with scaffolding or other appropriate material. Additionally, the obligations of co-ordinating and supervising the work remained with Maggiotto, and these obligations had direct relevance to the safety of the work Gordon was instructed to perform. It follows that the performance of Maggiotto's duties under Regulation 73 was not "wholly delegated" to Gordon. Maggiotto still had to do construction work in regard to unit 33. That work involved co-ordinating and supervising the activities to be performed by Gordon and others, and supplying the necessary materials to Gordon. 39 There can be no doubt but that Maggiotto breached the duties imposed on it by reg 73. 40 Firstly, as part of its co-ordinating task, it should have ensured that the stairs were in unit 33 before Gordon commenced his carpentry work. The stairs were delivered to the site in pre-fabricated form and were to be installed in the units as soon as the gyprock lining in the unit was completed. Sgambellone said that the finishing carpenters were able to commence their work either before or after the stairs were installed and this indeed occurred (that is, they performed their work both before and after the stairs had been installed). The stage at which the stairs were installed appears to have been immaterial to Sgambellone. There was, however, an obvious need, for reasons of safety, to delay the carpenters' work until the stairs were installed. Maggiotto refused to do this in regard to unit 33. It thereby breached reg 73. 41 Secondly, as part of its task of supplying the necessary materials, Maggiotto should have supplied Gordon with appropriate scaffolding or other safe means of permitting him to have safe access to the interior of unit 33. Its failure to do so was also a breach of reg 73. 42 Thirdly, as a general proposition, Maggiotto failed to take all measures that appeared to have been necessary or advisable to minimise accident risk and to prevent injury to the health of persons engaged in construction work on the site. It thereby breached the regulation.

43 Counsel for Maggiotto accepted that, in the present circumstances, voluntary assumption of risk and contributory negligence could not be an answer to actions for breach of statutory duty. 44 In the circumstances, I would uphold the cross-appeal concerning Maggiotto's liability for breach of statutory duty. Breach of contract 45 The cross-appeal concerning Maggiotto's liability for breach of an implied contractual duty was fully debated with counsel for Maggiotto, and I shall express my views as to the issues that arise in regard thereto. 46 The law implies in all contracts of employment a duty on the part of the employer to take reasonable care for the safety of employees, including the duty to provide a safe system of work: Matthews v Kuwait Bechtel Corporation [1959] 2 QB 57, Johnstone v Bloomsbury Health Authority [1992] 1 QB 333. 47 In Stevens v Brodribb Sawmilling Company Limited (1985) 160 CLR 16 Mason J said (at 31): "Although the obligation to provide a safe system of work has been regarded as one attaching to an employer, there is no reason why it should be so confined. If an entrepreneur engages independent contractors to do work which might as readily be done by employees in circumstances where there is a risk to them of injury arising from the nature of the work and where there is a need for him to give directions as to when and where the work is to be done and to co-ordinate the various activities, he has an obligation to prescribe a safe system of work. The fact that they are not employees, or that he does not retain a right to control them in the manner in which they carry out their work, should not affect the existence of an obligation to prescribe a safe system."

48 His Honour was dealing with a tortious duty, but in my opinion, the obligation to prescribe a safe system of work is ordinarily to be implied, by operation of law, in contracts where a head contractor engages independent contractors to do work which could be done as readily by employees in circumstances where there is a risk to them of injury arising from the nature of the work and where there is a need for the head contractor to give directions as to when and where the work is to be done and to co-ordinate the various activities. 49 The contract between Maggiotto and Gordon was entered into in circumstances that fell squarely within those described in the preceding paragraph. Counsel for Maggiotto did not dispute that an obligation to prescribe a safe system of work would ordinarily be implicit in such a contract. He submitted, however, that such an implied obligation could be prevented from arising by express agreement between the contracting parties, and said that that is what occurred in the present case. He submitted that Maggiotto and Gordon had expressly agreed that Gordon would carry out the work without the stairs having been installed in unit 33. This he said meant that, by express agreement, it was up to Gordon to provide the necessary safety equipment for the work, and that Gordon accepted the risk should he not do so. I do not think that this conclusion follows, but I shall examine the proposition that an agreement in the terms as submitted was entered into. 50 Counsel for Maggiotto relied on a conversation between Gordon and Mr Maggiotto (the managing director of Maggiotto) and one between Gordon and Sgambellone. A few days before 23 April 1993, Gordon told Mr Maggiotto that he would like the stairs for unit 33 to be put in before he proceeded with the work. Mr Maggiotto responded, "if [you do] not want to do the work there [are] plenty of others who would do it for [you]". Later, Gordon asked Sgambellone whether the stairs could be put in place before he started work. Sgambellone responded, "Just get on with the work, it's got to be done", or words to that effect. Counsel submitted that these conversations amounted to an agreement whereby Gordon accepted the risk caused by the void. 51 The facts relating to the entering into of the contract whereby Gordon was engaged to perform the carpentry work in unit 33 were not dealt with at trial with any degree of precision. Delaney DCJ made no finding as to the terms of the contract, and this aspect did not seem to receive any particular attention at the trial by any of the parties. 52 Gordon was engaged to perform the fit out work on unit 33 as part of a contract whereby he undertook to do such work for four units, unit 33 being one of the four units in question. There is a suggestion in the evidence that that contract was entered into some time before April 1993 (that is, before the conversations relied on by Maggiotto as constituting the relevant contract). This suggestion derives from evidence that is open to the inference that Gordon did work on the four units fairly constantly from February to 23 April 1993. Moreover, it was put to Gordon in cross-examination by counsel for Maggiotto that his discussion with Mr Maggiotto about "being engaged to do the work" occurred "some considerable months" before the accident. I shall assume, however, in favour of Maggiotto, that the contract was entered into some time in April 1993. 53 In his evidence in chief, Gordon was asked whether, after he had completed certain work on 10 units for Maggiotto at Blacktown, he had further contact with Mr Maggiotto regarding the work on the four units at Mt Pritchard. The following exchange then occurred: "A. Yes he asked me to quote on the last four units to be done. Q. And did that include unit 33 where you were injured? A. Yes it did. Q. And did you provide him with a quote? A. Yes I did. Q. When you provided him with a quote, was that accepted? A. Yes he accepted it. Q. And when did you start work in relation to performing the work associated with that quote? A. Basically a couple of days before I was injured."

54 It can be seen that in this exchange that the dates of Gordon's quote and Mr Maggiotto's acceptance were not identified. Nevertheless, it does not follow from this part of the testimony (as was submitted by counsel for Maggiotto) that the quote was accepted "a couple of days" before Gordon was injured. 55 In another passage, cross-examining counsel asked Gordon how he came to be at the Mt Pritchard site after he had completed the first ten units. He replied: "Because Mr Maggiotto rang me and said that the other four were ready to go".

The inference to be drawn from this answer is that, after the contract whereby Gordon was engaged had been concluded, some time expired until Mr Maggiotto telephoned Gordon and told him that the four units were "ready to go". 56 The only other evidence that bears on this issue is Gordon's testimony concerning the two conversations on which counsel for Maggiotto sought to rely. That is, the conversations in which Gordon asked for the stairs to be put in before he proceeded with the work but was met by refusals. Two points should be noted about these conversations. Firstly, they took place on the building site. Secondly, Gordon said that they took place when he returned to work for Maggiotto in 1993 and concerned the preparation of the areas where he was to work. 57 Having regard to all this material it seems to me that the most likely sequence of events was as follows. Firstly, Maggiotto asked Gordon to quote on the four units. Gordon provided him with a quote which he accepted. Later, Maggiotto telephoned Gordon and told him that the units were "ready to go". Gordon then came to the site and discussed with Mr Maggiotto and Sgambellone the preparation of the areas where he was to work. In the course of these discussions he asked them to have the stairs put in before he proceeded with the work. 58 On this basis, the contract between Maggiotto and Gordon was merely a contract whereby Gordon undertook to perform the fit out work in the four units. It was not a term of the contract that Gordon would perform that work in conditions where there were voids where the staircases were to go and on the basis that Maggiotto was not to provide any scaffolding or other equipment to enable him to have safe means of access to the internal areas of the units. 59 Accordingly, in my opinion, it was an implied term of the contract, by operation of law, that Maggiotto would provide a safe system of work whereby Gordon would perform his carpentry work. Maggiotto breached that duty in the same respects as it breached the statutory duty set out above. 60 As I understood counsel for Maggiotto he accepted that were the contract to be in the terms I have found it to be, the defence of voluntary acceptance of risk fell away. 61 In any event, on the facts, it is plain that Gordon entered into the contract under conditions of compulsion and not, as the authorities require, without any feeling of constraint: Bowater v Rowley Regis Corporation [1944] KB 476 at 479, Tingle v J B Hinz and Sons [1970] Qd R 108 at 113, King v Commissioner for Railways [1971] Qd R 266. On this basis there was no voluntary assumption of risk. 62 Contributory negligence does not arise under this cause of action: Astley v Austrust Limited (1999) 197 CLR 1. 63 Accordingly, I would uphold the cross-appeal in regard to the claim based on breach of an implied contractual term.

The appeal as to the quantum of damages 64 According to Gordon, a large part of the disability he sustained in the accident involved psychiatric injuries. Maggiotto contended that the psychiatric injuries resulting from the accident were temporary and limited in time. Further, Maggiotto contended that, until February 1994, any depression and symptoms of anxiety displayed by Gordon were caused by matters unrelated to the accident of 23 April 1993. 65 For a period of two and a half years prior to February 1993, Gordon and his wife engaged in consensual sexual acts with the family dog. In February 1993 a blister appeared on Gordon's penis and this required the application of antibiotics. For about two months Gordon sought treatment from a medical clinic in the belief that he was suffering from an incurable and terminal disease. In May 1993 he received medical treatment from and on three occasions admitted himself to the Liverpool Hospital. He made no mention of any complaint stemming from the accident of 23 April 1993. Rather, he complained of depression and other problems caused by his aberrant sexual activities. 66 Thereafter, until 2 February 1994, Gordon was examined and treated on some ten occasions by medical practitioners to whom, with one exception, he maintained that his condition was caused by the sexual activities in which he had indulged. The exception involved Dr Walsh, a general practitioner, who noted that Gordon was suffering from "resultant depression" after he "fell at work". 67 In January 1994 Gordon first consulted solicitors about the accident on 23 April 1993. They referred him to two consultant psychiatrists, Dr Murugesan and Dr Jolly. At about that time Gordon terminated the services of the doctors who had been previously been treating him. 68 Dr Murugesan expressed the opinion that Gordon developed his existing state of depression after the accident on 23 April 1993 and testified that the depression, in his opinion, was caused by the physical injuries Gordon suffered in consequence. He was of the view that the sexual activities with the dog were not the true cause of Gordon's mental state. Dr Jolly was of the same opinion. 69 When the history of Gordon's complaints prior to February 1994 were put to Dr Jolly, it became apparent that he had not previously been aware of them. This led to Dr Jolly, in effect, being less certain of his view that Gordon's psychiatric problems had been caused by the accident. He nevertheless maintained that view. 70 Delaney DCJ was of the opinion that Gordon "did not in any way seek to deceive, dissemble, or in any way was being untruthful in the way in which he gave his histories". The learned judge said further, "I am satisfied on the balance of probabilities that, accepting the evidence of Dr Murugesan, Dr Jolly and, as I understood his evidence in chief, part of the view of Dr Shand, the material cause of [Gordon's] condition as it continues, and has continued from the date of accident to today, has been the accident itself". 71 The passage to which the learned judge was referring in the evidence of Dr Shand, a psychiatrist called by Maggiotto, was the following: "Q. What I am saying doctor and I think I put it to you earlier, is that it is not uncommon in the practice of psychiatry for a person who suffers a major incident involving significant injury with possible implications for one's vocational future, who then develops major depression, for that person to fixate or become preoccupied with matters that may have occurred in earlier in life? A. Yes I'm with you. I answered yes to that. And it is true that when a major depression occurs material from the past does get dredged up and attached in usually very exaggerated form to the disorder."

72 Dr Shand, accordingly, accepted that it was common in psychiatry for a person displaying symptoms of reactive depression and anxiety with psychotic features, who has been involved in episodes such as Gordon had been involved with the dog, to become fixated or preoccupied with those episodes. That, in essence, was the basis for the opinions expressed by Drs Murugesan and Jolly. 73 Counsel for Maggiotto submitted that Delaney DCJ had failed properly to take into account the history of Gordon's complaints and the effect that this had had on the evidence of Dr Jolly. It is apparent, however, from an examination of his reasons that his Honour was well aware of the history and took that into account. He referred specifically to the argument advanced on behalf of Maggiotto that was based on the history. He noted the relevance of the history given to Dr Jolly in assessing the weight to be attributed to the doctor's views. He referred to the reasons given by Dr Murugesan and Dr Jolly for coming to the conclusion that they did, and stated that he accepted those reasons. It follows that Delaney DCJ was fully aware of all the matters that Maggiotto relied on before this Court and took them into account in making the factual findings and in coming to the conclusions that he did. 74 There was evidence which justified the conclusion to which the learned judge came, and this was acknowledged by counsel for the appellant. Principally, the criticism was merely to the effect that the weight of the evidence was such that Gordon should not have been believed and this rendered the opinions of his medical witnesses suspect. Delaney DCJ however accepted the evidence of Gordon and regarded him as a credible witness. His Honour was entitled to come to this conclusion. In my opinion no error on his part has been demonstrated. I would dismiss this ground of appeal.

In the circumstances, I would dismiss the appeal, uphold the cross appeal, set aside the verdict for $230,396 and order that there be judgment for Gordon and a verdict in the sum of $460,792. I would order that Maggiotto pay Gordon's costs of the trial and the costs of the appeal and cross appeal, and in regard to the cross appeal Maggiotto to have a certificate under the Suitors Fund Act 1951. **********

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.