JUDGMENT
1 HIS HONOUR: On 28 January 2003 the Plaintiff in these proceedings was injured when he fell through a void left in a plywood "floor" being laid as the surface on which a concrete slab was to be poured. The First Defendant in the proceedings is the builder who was undertaking the construction of a block of units on the site. Its site supervisor was a Mr John Stojanovski who was also a director of the First Defendant. The Second Defendant is a formwork sub-contractor who was engaged in that activity and who employed the Plaintiff at the relevant time. Its operations on the site were controlled by a Mr El Jendi.
2 The plywood was at ground level and the Plaintiff fell a distance of about 3 metres to the basement level. The void - something of the order of 4 metres by 2.4 or 2.5 metres wide - had been left deliberately, it being located in the area that was destined to be a stairwell. Concrete-filled blockwork forming the walls of the stairwell had previously been erected from the foundations of the building up to the ground floor and, to the extent to which the plywood floor had been completed, it was level with the top of these walls.
3 At one side of the site was a driveway. The plywood floor adjacent to the stair void on the side of the building furtherest from the driveway was well advanced. There was also some plywood flooring between the stair void and the driveway, although that area was far less complete. In order to facilitate access to the driveway, apparently to enable employees of the First Defendant to transport wheelbarrows filled with gravel to deposit that gravel there, Mr Stojanovski had requested the Second Defendant to erect a bridge across the width of the stair void. This had been done some few days prior to the Plaintiff's accident. The base of the bridge was formed by three pieces of timber often referred to in the evidence as "planks" to the top of which was affixed plywood.
4 Mr Stojanovski, whose evidence in this respect I accept, gave evidence that when in use as part of the bridge, the planks were on edge and the plywood consisted of sheets 1.2m wide which in totality extended for the length of the bridge.
5 Although referred to in the evidence as "planks" the 3 pieces of timber were in fact the sort of timber used as bearers in the construction of the principal formwork. When so employed they were placed on top of metal scaffolding and metal jacks and in turn smaller timber joists and then plywood was affixed above the bearers. The cross sectional dimensions of the planks were approximately 150mm x 60mm. The length of the planks was, according to the Plaintiff, 4.3 to 4.5 metres, according to Mr Stojanovski 3.6 metres and according to Mr El Jendi 4 to 4.2 metres. The Plaintiff said that the planks weighed more than 30 kilos. Mr El Jendi said that planks weighed 30 to 40 kilograms and agreed that if he wanted them lifted up he would have asked 2 persons to carry out that task because of the weight. Having regard to where the onus of proof lies, I find the weight of the planks to be something over 30 kg but I am not satisfied that that weight was nearer 40 than 30. Having regard to the fact that the Plaintiff and Mr El Jendi were working with the planks and Mr Stojanovski was not, I find their length to be of the order of 4.2 metres.
6 Prior to his employment with the Second Defendant the Plaintiff had worked for another formwork contractor Zahara and Tawil. While employed by the Second Defendant, the Plaintiff had also worked on 3 other sites and had worked on the subject site for some 10 days prior to his accident. This work had involved bringing the timber onto site, providing labour, cutting timber, putting timber in its place and securing it. He agreed that on such sites there were many pieces of timber like the planks and that he had, sometimes on his own and sometimes with another person, lifted such pieces. I would infer that it was a common incident of his work to handle such pieces. From what the Plaintiff told Professor Jones, he had some 6 or 7 months experience prior to his accident.
7 At the time of, and immediately before, the Plaintiff's fall, he had been engaged in removing the 3 planks from across the stairwell void. The Plaintiff said that initially the planks were lying close together or adjacent to one another. If by this the Plaintiff meant they were virtually touching each other, I am not satisfied this is so but I do not think this matters. The Plaintiff removed one of the planks successfully and, according to him, lifting normally and without any problem. He pulled it until he had it "to" - I infer fully or almost fully on or above - the fixed plywood and then carried it over his shoulder some little distance away to where similar sized planks were being used in the construction of further formwork. The Plaintiff then commenced to remove a second plank which he said was slightly longer than the first. The evidence he gave as to his actions does not make clear all that occurred. He said that he pulled the plank until its far end was resting on the edge of the opposite side of the stair void (be it plywood or wall). He also agreed that he had picked the plank up from what was the near end and kept pulling until "it hit the wall", which I understand to mean until the plank's far end reached the wall on the other side of the void. Then he lifted it up. He said he did so by placing one hand under the plank and demonstrated having the plank under his armpit. What was not clear was how close to the edge of the void, or alternately, how close to the near end of the plank the Plaintiff was when he sought to take, or took, its weight.
8 The Plaintiff denied that the timber had hit him, saying also that he was pulling the timber, it tipped, he couldn't control it and he fell. The Plaintiff was unable to explain how it came about that he picked up one plank successfully but not the second.
9 During his evidence other methods of moving the timber were suggested to the Plaintiff but he said that there was no other suitable way. Certainly I agree with him that one method suggested was not suitable. This was that it would have been easy for 2 persons to lift the planks from the stair void. If the proposition is confined to simply lifting without moving the planks away, I might not disagree but the evidence indicated so little plywood on the driveway side of the void that I am not persuaded that it would not have been difficult, and probably involving some danger, for anyone on that side to be engaged in any useful movement of the planks to an area where they could have been then used.
10 There was no evidence that any other witness saw the Plaintiff fall or what the Plaintiff was doing immediately beforehand. Certainly no-one other than the Plaintiff gave evidence of the circumstances of his fall.
11 The Plaintiff gave evidence that there were no timber railings on either side of the bridge and, consistently with that, no evidence of knowledge of their removal. He did agree that there had been some plywood on the planks to, as he said, keep the planks together but said that such plywood was only small and that a co-employee Hassan Arja had removed the plywood. The Plaintiff's evidence as to the size of the plywood I reject, because it is inconsistent with evidence of Mr Stojanovski which I prefer. In reaching that conclusion, I am influenced by what I see as the unlikelihood of the width of the bridge being only 450 mm or so when the purpose of the bridge was to enable the passage of, presumably heavy, wheelbarrows. I do not feel able to make a finding as to the removal of the plywood beyond that the Plaintiff did not remove it and very probably some employee of the Second Defendant did.
12 There were other matters of controversy or doubt. One was the topic of fencing. The Plaintiff gave evidence that there were no barricades around the stair void and, as I have said, denied that there were any timber railings on either side of the bridge.
13 Mr Stojanovski asserted the contrary. His evidence was that there was a post and rail fence along the sides of the bridge and around the stair void except at the 2 ends of the bridge. He said that when he went to where the Plaintiff had fallen, the railing was still around the stair well but there was none on the one plank that was still spanning the void.
14 Mr El Jendi was asked but one question concerning fencing. It, and his answer were:-
Q. No fencing around the stairwell?
A. Just the opening, where the opening is.
15 The circumstances in which the Plaintiff came to be removing the planks, and the knowledge of the Defendants as to the situation were also the subject of dispute.
16 The Plaintiff said that shortly prior to his injury, he had been told by Hassan Arja that Mr El Jendi wanted him. He went to Mr El Jendi who said words to the effect that Hassan was unable to get the 3 bridge timbers and asked the Plaintiff to get them. Mr El Jendi asked the Plaintiff to bring the planks and bring them to where Mr El Jendi and another person were extending the formwork and floor.
17 Mr Arja gave evidence. He denied approaching the Plaintiff and saying words to the effect, "The boss wants to see you. He wants you to get some timber from the bridge area." He denied also that he had removed plywood from the bridge, saying that he was not qualified to do so at that stage although, given the fairly basic nature of the task, it is not clear why that was so. Mr Arja also denied that the Plaintiff could have been involved in the dismantling of the bridge.
18 Mr El Jendi said that he had never received any advice that the bridge was no longer required, had received no instruction to demolish the bridge, had given the Plaintiff no instruction to do so or to remove any timber from the bridge, had given no instructions to a Mr Arja to tell the Plaintiff to take timber from the bridge, and had given no instructions to Mr Arja to remove the timbers or plywood from the bridge and had not told the Plaintiff to bring any of the bridge timbers to him.
19 Mr El Jendi said that he and two other men were engaged in constructing formwork in the basement, moving the formwork for a concrete beam from one place to another and that they had enough timbers without needing the Plaintiff to provide more. Mr El Jendi gave evidence that other employees of the Second Defendant - it may be he intended to include the Plaintiff - were engaged that day in removing nails from timber although he also said that formwork was being constructed on the ground floor, i.e. the floor from which the Plaintiff fell.
20 Mr El Jendi also said that on the morning of the accident he had walked a number of times around the area where formwork was laid and within metres of the bridge but had not noticed the bridge. Despite this evidence he agreed that the bridge was in the same condition as it had been on the previous day.
21 Mr Stojanovski carried out a site inspection soon after his arrival on site that morning. At one stage he said that at that time there were still some timbers over the void but what was there was no longer a bridge: At another he said that he could not recall whether the dismantling had occurred at the start of that day, later that morning or some time on the day before but whenever it was he was aware prior to the Plaintiff's accident that some demolition of the bridge had occurred. Although Mr Stojanovski asserted that he had no recollection whether any of the planks had been removed, that demolition probably consisted of one or both of the removal of the plywood and bridge railings. Either of these events seems to me to have required, in the interests of safety, that the gap in the railing be closed. Mr Stojanovski took no steps to do anything in response to his knowledge in these respects.
22 Somewhat inconsistently, Mr Stojanovski also said that during the hour or so before the Plaintiff's accident he was in his site office and was not aware that the bridge was about to be demolished. He said that he had never instructed the Second Defendant to demolish the bridge and the Second Defendant had never asked for permission to demolish the bridge although perhaps 2 days prior to the Plaintiff's accident had asked if the bridge had been finished with.
23 Mr Stojanovski acknowledged that the removal of the bridge created 1.2 metre gaps in the railing around the stair void albeit, as long as the planks were there, they were something to fall onto. He said also that after the accident when he saw one of the plank(s) which was at an angle in the stairwell there was no plywood attached to it.
24 What conclusions should be drawn from the above? Firstly, I should say that I did not regard any of the witnesses with the possible exception of Mr Stojanovski as entirely satisfactory. There was nothing in the demeanour of any of them to inspire doubt or disbelief but the content of a deal of the evidence does so. I will say more about the Plaintiff's reliability and credibility below but and it is sufficient for the moment to say that it is poor and I have no doubt that at least on some of the issues relating to damages he lied. On the other hand it appears to me inherently unlikely that the Plaintiff would have set about demolishing or continuing the demolition of the bridge without instructions from Mr El Jendi whose evidence on that topic and as to knowledge of what was occurring in relation to the bridge seems to me unlikely in the extreme. Mr Arja's evidence that the Plaintiff could not have been involved in the demolition of the bridge damages his reliability. There is no doubt that, immediately prior to the Plaintiff moving the plank that led to his fall, the bridge was, with the exception of 2 planks, demolished and that this exercise had occurred over a period encompassing inspection of the area by Mr El Jendi. The Plaintiff's fall into the stairwell at the same time as did one of the planks, seen shortly afterwards by Mr Stojanovski, provided a deal of confirmation he was then engaged in the task of demolition.
25 I said "with the possible exception of Mr Stojanovski". I do not see all of his evidence as to his state of knowledge concerning the bridge as reconcilable but, subject to that, I regard his evidence as generally reliable.
26 I am satisfied that the stairwell void and bridge were fenced as Mr Stojanovski asserted, subject however to the presence of 2 gaps once the railings or plywood on the bridge had been removed. In this connection I regard the evidence of Mr El Jendi that I have quoted, though cryptic, as providing some support for the conclusion that the void was fenced although I would have come to that conclusion even in the absence of Mr El Jendi's evidence.
27 There is nothing to suggest that the Plaintiff bought the fence down with him and in the circumstances I think it probable that the Plaintiff fell through the gap at what had been the end of the bridge where he was working in removing the 3 bridge planks. Thus this gap was causally related to his accident.
28 I am also satisfied on the probabilities that the removal of the bridge and its component parts was a task undertaken by employees of the Second Defendant and probably ordered by Mr El Jendi and that the removal of the planks in which the Plaintiff was engaged at the time of his fall was pursuant to orders given by Mr El Jendi to the Plaintiff. And even if that conclusion is wrong, Mr El Jendi's inspections make it very likely he knew what was occurring. I am not disposed to accept Mr El Jendi's evidence to the effect that he would have always asked two persons to lift a plank.
29 I should add that, in reaching the conclusion that the task of dismantling the bridge was ordered by Mr El Jendi, I have not ignored evidence to the effect that the bridge timbers were not needed by Mr El Jendi for the task of relocating the formwork for a beam in which he said that he was engaged. I see no reason to disbelieve this evidence but the probabilities still favour the conclusion at which I have arrived.
30 During the hearing attention was also given to the issues of training. The Plaintiff said that he had never received any formal instruction as to how to go about his job as a formwork labourer or any occupational health and safety instruction, either from the Second Defendant or the Plaintiff's previous formwork employer. He said he was given no instructions as to how to go about the task of removing the planks or warned of any danger associated with doing so.
31 Mr Stojanovski said that while he had never inquired of the Plaintiff whether the latter had undergone occupational health and safety induction training there was a specific occupational health and safety management plan for the site. The relevant document became Exhibit 8 and other site induction documents became Exhibits 7 and J. The signatures on latter also post-date the Plaintiff's accident, suggesting that the topic of site safety received less attention that it might have prior to the accident. Furthermore, while something like Exhibit 8 might be necessary to comply with legislative requirements, it is so long and contains so many "motherhood" like statements that I doubt if any reading of it by employees or other workers would have had any practical effect.
32 There was no challenge to the Plaintiff's evidence that he received no training (other than by watching what others did). However, I am not persuaded that the absence of training was causally connected to the accident.
33 Relevant in this regard is evidence of Mr Stojanovski to the effect that when formwork is being set up for a floor, and after a reasonable area is set up from below, the procedure followed is for timbers to be placed from below and then, working from above, for the plywood to be placed on the timbers. The working edge - and there may be more than one - is always unprotected.
34 From this and other sites on which he had worked it is to be concluded that the Plaintiff was accustomed to handling timber of the nature of the planks. Furthermore, it is appropriate to remember that some, and sufficient for present purposes, of the elementary rules of physics are learnt from a young age. Children learn the impact of weight on a see-saw. They learn also that to balance a ruler on a finger, the finger must be in the middle of the ruler. They learn also something of the practical workings of leverage and gravity. The Plaintiff employed some of this knowledge in limiting his movement of the second plank so that its far end remained for a time on the far edge of the stairwell and other of that knowledge, it may be inferred, when he successfully removed the first plank. It also requires no instruction to a grown man for him to know that if one falls 3 metres one may be hurt and that, any activity not accompanied by care while on or near the edge of a platform may lead to falling or stumbling off it. Indeed the same might fairly be said of most, if not all children over 5. It is a reasonable inference from the fact that the Plaintiff had been engaged in formwork for some months that he would have been aware and conscious of these matters at least at some time every day. Thus I am not persuaded that any training would have made the slightest difference or that his accident was due in any respect to an absence of training.
35 Relevant to the liability of one or both of the Defendants is their awareness of the situation of the premises. It is clear from the evidence of Mr Stojanovski to which I have referred that prior to the Plaintiff's accident he must have been aware that there were gaps in the railing surrounding the stair void and was or should have been aware that during the demolition of the bridge, those gaps created a risk or at least an opportunity for someone to fall through.
36 I would draw the same conclusion in the case of Mr El Jendi. An incident of the bridge were the gaps in the railing around the stairwell void. So long as the bridge, and its own railings, remained those gaps may have been of no consequence so far as safety was concerned but a necessary incident of the removal of the bridge or its railings was the obvious risk presented by the gaps and the void between them. A fortiori is this so if work was to be done involving items such as the planks within or vertically above the void.
37 Eliminating the risk by extending the post and rail fencing otherwise surrounding the void so as to cover the gaps would have been a simple task and, given the gaps between floor and rail and post such a fence necessarily involves, and the access from below, such an extension would not have precluded the ready removal of the planks or, if it matters, the bridge railing.
38 As advanced, the case for the Plaintiff was not restricted to the topics of absence of reasonable care, fencing and training. As against the First Defendant it was also alleged that there had been failures to comply with the provisions of the Occupational Health and Safety Act and regulations in that, as the controller of premises:-
(i) Used as a place of work in the course of its trade, business or other undertaking, it failed to ensure that the premises were safe… - Section 10.
(ii) It failed to identify a foreseeable hazard arising from the premises that had the potential to harm the health or safety of any person…using… the premises… - Regulation 34.
(iii) It failed to assess the risk of harm to the health or safety of the Plaintiff arising from a hazard identified… - Regulation 35.
(iv) It failed to eliminate a risk, arising from the premises, to the health or safety of any person… using… the premises … - Regulation 36.
(v) It failed to provide the Plaintiff's employer with information about a foreseeable hazard arising from the premises that had the potential to harm the health or safety of the Plaintiff … - Regulation 38.
(vi) It failed to ensure the Plaintiff had safe access to all parts at the place of work … - Regulation 39.
(vii) It failed to ensure that risks associated with falls from a height were controlled by the provision and maintenance of a stable and securely fenced work platform or secure perimeter fencing, handrails or other forms of physical barriers … - Regulation 56.
(viii) It failed to ensure that the Plaintiff had undergone occupational health and safety induction training… and to identify a change in the construction site … - Regulation 213.
(ix) As principal contractor for the construction site, it failed to prepare a site specific occupational health and safety management plan … - Regulation 226.
39 It follows from what I have already said that the obligations imposed by Section 10, and at least regulations 34 or 35, 36, 38, and 56 were breached.
40 As against the Second Defendant it was alleged that:
(i) It breached a term of the contract of employment with the Plaintiff to take reasonable precautions for the safety of the Plaintiff and to not expose the Plaintiff to a risk of damage or injury… by providing a safe place of work etc.
(ii) It failed to ensure that the premises controlled by the Second Defendant and where the Plaintiff had to work were safe … - Section 8.
(iii) It failed to take reasonable care to identify a foreseeable hazard that arose from the conduct of the employer's undertaking and that had the potential to harm the health and safety of the Plaintiff and failed to take reasonable care to identify hazards … - Regulation 9.
(iv) It failed to assess the risk of harm to the health or safety of the Plaintiff arising from a hazard identified … - Regulation 10.
(v) It failed to eliminate a foreseeable risk to the health or safety of the Plaintiff … - Regulation 11.
(vi) It failed to provide instruction, training and information … - Regulation 13.
(vii) It failed to ensure that the Plaintiff was provided with reasonable supervision … - Regulation 14.
(viii) It failed to supply the Plaintiff with… personal protective equipment … - Regulation 15.
(ix) It failed to ensure that the Plaintiff was provided with safe access … - Regulation 39.
(x) It failed to ensure that risks associated with falls from a height were controlled by the use of a stable and securely fenced work platform such as scaffolding, secure perimeter screens, fencing … - Regulation 56.
(xi) It failed to eliminate a risk from manual handling - Regulation 80.
41 It is clear that the Second Defendant breached at least Section 8, regulations 9 or 10, 11, and 56. I am satisfied also that there was a term of the Plaintiff's contract of employment to the effect of that envisaged in sub-paragraph (i) of the immediately preceding paragraph of these reasons and that the Second Defendant breached it also.
42 (In the foregoing consideration of the regulations, and because of findings made above, I have not found it necessary to consider the issues of instruction, training and the like. Nor, in light of the breaches I have found, do I regard it as necessary to consider whether other regulations relied on were breached. I take this view because, in light of the findings I have made, I do not regard breach of any of the other regulations pleaded as adding to any material extent to the respective responsibilities of the defendants for what occurred.)
43 I should also refer to an argument advanced to the effect that there should have been erected within the stairwell void a platform some short distance lower than the formwork floor so as to severely curtail the distance the Plaintiff could have fallen. Given that a small addition to the fencing could have in practical terms achieved the same protection to persons working near where the Plaintiff was (and, I would infer, at smaller cost), I am persuaded that there was nothing unreasonable in the omission to erect or install such a platform.
44 The actions or inaction on the part of Mr Stojanovski and Mr El Jendi both contributed to the Plaintiff's injury. Given in the case of the first, his control of the site, his knowledge and the statutory and regulatory duties the First Defendant was under, I regard the First Defendant's conduct as demonstrating a lack of reasonable care for the Plaintiff and therefore negligent. Given, in the case of Mr El Jendi, his organisation's obligations as the Plaintiff's employer, its statutory and regulatory duties and that the occasion for the closing of the gap in the fencing was the result of actions of the Second Defendant in removing or partially removing the bridge, he and his employer were also guilty of a lack of reasonable care and negligent. These matters also lead to the conclusion that, as between themselves, an appropriate apportionment of their responsibilities for the Plaintiff's injury is 25% to the First Defendant and 75% to the Second Defendant.
45 I am also satisfied that the Plaintiff's fall was contributed to by his own actions. On the basis of my conclusion that the planks were probably of the order of 4.2 metres long, if the void was 2.6 metres wide and a plank simply pulled to the stage where it was resting on the edge of the far side as the Plaintiff said, say to the extent of 100-150mm, there would have been about 1450-1500 mm resting on the main plywood floor on the side from which the Plaintiff was working. That 1450-1500 mm would have involved over a third of the weight of the plank and, if the plank was left in a more or less horizontal state while being pulled further, there should have been no difficulty in a grown man, exerting enough additional downward force on that 1450-1500 mm to overcome the fact that the centre of gravity was, and would be until the plank was pulled something approximately 600 mm further, over the void. The Plaintiff was not a small man and even if his size now is appreciably more than it was at the time he was injured, his weight would have been very much greater than the two-thirds or so of the plank over the void. Common sense would indicate his weight could and should have been applied near the end that was more than a metre from the void and thus I see no significant danger if the plank had been pulled onto the main floor before being lifted.
46 Obviously the figures in the immediately preceding paragraph change if the plank was not 4.2 metres long but, given its overall weight, not enough to make the method referred to impractical. The figures and concepts in that paragraph also lead me to the view that the task on which the Plaintiff was engaged did not require 2 men and that there was no negligence in the Second Defendant merely by reason of 2 men not being employed in the task of removal of the planks.
47 At one stage the Plaintiff did say that there was not room to draw the plank in this way but when regard is had to the evidence as to the areas covered by plywood, I reject this part of the Plaintiff's evidence.
48 The method of lifting the plank the Plaintiff described - placing one part of the plank under his arm-pit, so that the arm-pit operated as a fulcrum and then lifting with is hands is also an appropriate way of lifting the far end of a plank or length of timber but only providing the forces operating (or the net of them) are not too great. Relevant factors in this connection include the plank's or timber's total weight, the proportions of the length either side of the fulcrum and the force the Plaintiff could exert through his hands. I do not regard the plank's weight as itself demonstrating error in the method the Plaintiff adopted, particularly as he would seem to have (somehow) successfully removed one plank, but it is elementary physics that a change in the position of the fulcrum along the plank's length may have made a significant change to the forces operating once the far end of the plank was removed from its support. Furthermore, given a specified length of plank one end of which was resting on or very near the far edge of the void, the further the Plaintiff stood back, or more precisely the distance his armpit was, from the edge of the void, the greater the force he would have needed to exert with his hands. Conversely, the closer the Plaintiff stood to the void, the less that force would be, albeit at the cost of increasing the risk that any overbalancing would cause him to fall into the void.
49 Once the Plaintiff was engaged in the method of lifting he described, it would have been sensible and not difficult for him to test the weight or force of the plank, before moving its far end from the wall initially supporting it and, if that weight or force was too great to be safely managed, to make changes before that support was lost. I have no doubt that the fact of the Plaintiff's fall demonstrates that he did not exercise the care he might, and given the obvious risk of dropping the plank or himself falling, in his own interests should have done.
50 Was that want of care sufficient to constitute contributory negligence? Balancing and supporting planks or other pieces of timber was an integral part of the Plaintiff's job. Given the variation in distances (and one may infer the length and size of planks and other timber) that occur in building sites, it is impossible to believe that all lifting jobs required the use of 2 men and thus decisions when to lift on one's own and when to seek assistance must also have been an elementary part of the Plaintiff's work. It must have been obvious that something of the order of two-thirds of the length and thus weight of the plank would be above the void during the course of it being moved and that that weight - or more precisely, although I would not expect the Plaintiff to have thought in these terms, the position of the force being exerted by that weight - was some distance away from the Plaintiff. The gap in the fencing was obvious and must also have been obvious to the Plaintiff that, if he fell through that gap, he was liable to be injured.
51 The evidence is clear that there were co-employees of the Plaintiff nearby, engaged in other formwork activities. The nature of the work being done by the Plaintiff and these co-employees provides no basis for concluding that assistance was not available to the Plaintiff if he had sought it, even if that meant waiting some time and doing other work meanwhile. In these circumstances I regard the Plaintiff's actions as demonstrating or constituting contributory negligence.
52 That said, I regard the absence of fencing in the gap through which the Plaintiff fell as by far the matter of greatest significance. The purpose of fencing is to guard against, or at least avoid the potentially awful consequences that can flow from lapses of care that are recognised as not infrequently occurring during the carrying out of manual work such as that in which the Plaintiff was engaged. Closing up the gap would have been simple and in this case, there is simply nothing to indicate any reason why, from at least the time the railings on the bridge were dismantled, fencing of the gaps that had led onto the bridge was not done. It is clear that the presence of such fencing would not have significantly impeded the planks being pulled underneath such a fence and it is likely that the presence of such a fence, properly constructed, would have prevented the Plaintiff's fall. In these circumstances, I regard an appropriate apportionment of the responsibility for the injury that the Plaintiff suffered as 10% to the Plaintiff and 90% to the Defendants. I have already indicated what, as between the Defendants, are their respective responsibilities.
53 I should add that in arriving at the above conclusion I have not ignored the decision in Urvalek v Burning Log Fireplace Specialists Pty Limited (Unreported, NSCCA, 14 May 1987) to which I was referred. In that case the Court of Appeal set aside a finding of contributory negligence against a Plaintiff who injured his back while lifting an object weighing some 30 to 40 kilograms. There were 2 bases for that finding, only one of which is relevant here, viz that the Plaintiff should have appreciated the danger in seeking to lift the object on his own. The Court of Appeal said:-
"Turning to the two reasons given by the trial judge for his finding of contributory negligence, the first, although not logically excluded by the basis on which his Honour found the respondent negligent, nevertheless has an element of inconsistency with it. The finding was that the respondent should have warned the appellant about the danger involved in seeking to lift the extension arm by himself. It is unconvincing to find that the appellant was himself negligent in doing what the respondent had negligently failed to warn him not to do. The fact that he tried to lift the extension arm by himself is some evidence that he thought he was able to do so; there was evidence that another worker, apparently a bigger man than the appellant, was well able to lift the extension arm unaided .
There was no evidence that the appellant was in fact aware of the danger. Clearly he was attempting to perform his employment duties as he understood them when injured. The trial judge apparently inferred and this court was asked also to infer from its own general knowledge that the appellant ought to have been aware of the danger himself. The onus in this respect was on the respondent. The facts of the matter were no more complex than the simple ones we have narrated. On those facts, bearing in mind the unchallenged finding of negligence against the respondent in not warning the appellant of the danger or instructing him against it, we think that the respondent did not discharge the onus of proof upon it in respect of the first ingredient of his Honour's reasons.
Similarly we do not think that, on the material before his Honour, it was shown that the appellant should have appreciated that the way in which he picked up the extension arm exposed him to greater risk than if he picked it up with his knees bent and his back straight."
54 Given their source, these observations are entitled to respect. However, apart from reference to the onus, they are not propositions of law which bind me. As a tribunal of fact and entitled to apply my own experience of the world and common sense, I find them completely unpersuasive. Negligence of the employer in failing to warn the Plaintiff in that case seems to me of no, or at most of marginal, relevance in deciding whether the Plaintiff was himself negligent. Nor is it apparent what the significance was that the Court saw in the fact that the Plaintiff thought he was able to effect the lift. And although the Court seemed to find significant that there was no evidence that the Plaintiff in that case was aware of the danger, my experience from numerous sources - parents, friends, school, life outside the courtroom and in cases such as this - is such that, while persons may momentarily forget, everyone knows that there is the potential for injury to the lifter's back if items weighing 30 to 40 kilograms are lifted, a potential much increased if the lift is not done with knees bent and back straight. The remarks quoted seem to me to invite the deprecation expressed by Viscount Simonds in Smith v Austin Lifts [1959] 1 WLR 100 at 105.
55 Lest it be thought the matter has been forgotten, I should also add that in arriving at the conclusions I have as to the parties respective responsibilities for the Plaintiff's injuries, I have taken into account the relevant provisions of the Civil Liability Act.