Parkview Constructions Pty Ltd v Abrahim

The Legislation 13The appellants complain that his Honour failed to have regard to the relevant provisions of the Civil Liability Act 2002 ("CL Act") when making a finding of negligence against them. It is therefore convenient to set out those provisions in force at the relevant time: 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. 5C Other principles In proceedings relating to liability for negligence: (a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and (b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, ... 5D General principles (1) A determination that negligence caused particular harm comprises the following elements: (a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and (b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (scope of liability). (2) ... (3) ... (4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party. 5E Onus of proof In determining liability for negligence, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation. (Section 5E has been amended to substitute "In proceedings relating to liability for negligence" for "In determining liability for negligence": Statute Law (Miscellaneous Provisions) Act 2012, Sch 2.7). 14Since the primary Judge's assessment of damages for economic loss is also challenged, reference should be made to s 13 of the CL Act: Future economic loss - claimant's prospects and adjustments (1) A court cannot make an award of damages for future economic loss unless the claimant first satisfies the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant's most likely future circumstances but for the injury. (2) When a court determines the amount of any such award of damages for future economic loss it is required to adjust the amount of damages for future economic loss that would have been sustained on those assumptions by reference to the percentage possibility that the events might have occurred but for the injury. (3) If the court makes an award for future economic loss, it is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted.

The Facts 15Although there were factual disputes at the trial and there was some inconsistency in the findings made by the primary Judge (for example, as to the frequency of site inspections undertaken by the safety committee on site), there is now no significant challenge to the facts found by the primary Judge.

The Scaffolding and the Hop-Up 16The primary Judge described the scaffolding in place around the building in question ("Building G") and the hop-up attached to the scaffolding. The explanation becomes clearer if reference is made to two photographs taken from different angles very shortly after the accident occurred. The photographs (Photographs A and C, respectively) are annexed to this judgment. 17The primary Judge's description of the scaffolding and hop-up was as follows: The scaffolding 2 The scaffolding...... was modular in construction comprising a framework attached to vertical pipes (called "standards") which provided the support for a platform of (five) abutting steel boards 225mm wide and 1.85m long. The ends of the boards fitted snugly onto a steel beam (called a "transom"), which has a cross-section like an upside down "T", the cross-bar providing two ledges upon which rest the ends of the boards coming from opposite directions. The stem of the "T" operates as - and is called - a divider.) Mostly, the transoms are connected by longitudinal bars (called "ledgers") which have protruding plugs that slot into holes in the ends of the transoms, making a framed rectangle. The boards are thus held tight and do not need additional fixing. 3 A framework made up of these platforms was constructed around the perimeter of the building (called the "perimeter scaffold"). For various reasons, including obtruding balconies, it was not always practicable for the perimeter scaffold to abut the building. Furthermore, tradespersons such as renderers and painters needed to work on the walls and a [ledge] abutting the wall would get in their way. To provide a work platform next to the walls, a smaller structure (called a "hop-up") was used. It was from one of these that [Mr Abrahim] fell. It comprised three boards supported at one end on a transom, each end of which was fixed to a standard, and at the other end on a bracket attached at one end to a standard forming part of the perimeter scaffold but unsupported at the other end, where it was close to the wall. The bracket also had a "T" shaped cross-section, on one ledge (called the "inner ledge") [on] which the boards lay. It was 675mm long, with the three boards taking up virtually its entire length, leaving a gap of about 30mm to the wall. 4 It was, of course, essential to create a rigid structure which would not permit the bracket to splay outwards and thus allow the boards to fall off. ... The system adopted was to tie with wire the board closest to the wall (called the "third board") both to the bracket and the transom. At the bracket, the wire was passed through two holes a few millimetres from the end and holes in the boards and tied tightly over the divider. At the transom, the wire was passed through holes in the board and tied around the transom (which does not have holes). ... Had the ties to the third board remained in place, the accident would not have happened. However, it had been untied at both ends and removed, leaving the bracket free to splay. It eventually did so, and the second board gave way when [Mr Abrahim] moved onto it. How and when the third board came to be removed is a crucial question in the case. 5 Most of the length of the hop-up abutted a wall. As one moved along it from the bracket towards the transom for something over 1.5m, a space opened up on the right leading to an open balcony which provided access to the interior of [the] building. To cover this space, something over a metre square, two wooden boards had been placed over and tied onto the hop-up. They were supported at the other end by a bracket that was secured to the standard adjacent to the building and went along the wall just underneath the balcony. 6 When looked at from above, the hop-up and the timber boards formed an "L" shaped platform, with the stem going along the wall and the base turning right along the wall to the edge of the building at the balcony. Moving past the base of the "L" took one onto a five-board platform, similar to those forming part of the perimeter scaffold, one end of which rested on the transom that also supported the three boards of the hop-up on the other ledge. As with the perimeter scaffold, the ends of the transoms were fixed to standards, that standing adjacent to the building also supporting the bracket on which the wooden boards rested. As one came out of the building onto the open balcony (where balustrades and a transparent low wall was to be constructed) one might - staying to the left - have walked onto the wooden boards and turned left to move onto the hop-up or, moving to the centre and right side of the balcony, stepped out on to the five board platform. It was also possible to move straight ahead and climb (about half a metre) onto the perimeter scaffold. 7 ... The consequence of the structure in place was that, if the third board was removed without tying the second board to the bracket, there was an obvious risk the bracket would splay outwards and the second board might fall when someone walked onto it. The state of the hop-up at the time of the accident 8 Photographs of the area from which [Mr Abrahim] fell were taken shortly after the accident, ... The splay of the bracket is obvious and explains the fall of the second board. As to the bracket itself, a piece of wire perhaps 20mm or so long and attached to the end of the bracket stands out from the bracket, lying over what is a dollop of render that fell onto the divider, necessarily after the wire had been removed. ... 18Photograph A shows what I shall describe as Plank 1 still in place after the accident. Planks 2 and 3 are missing. As the primary Judge found, Plank 3 (nearest to the wall) had been removed before the accident. In order to remove Plank 3, the wire tying it to the bracket had to be cut . The cut wire from Plank 3 is clearly visible in Photograph A. Plank 2 was in place immediately before the accident, but there was no wire to hold it in place securely. Thus when the bracket "splayed" outwards (there being nothing to support it at the end closer to the building), Plank 2 was liable to be dislodged if someone stepped on it. That is what happened when Mr Abrahim did step onto Plank 2. The splaying of the bracket can be seen from the angle of the bracket in Photograph A. 19In order to remove Plank 3 from the hop-up, it would have been necessary also to remove the two wooden boards that had been tied to the hop-up at more or less right angles to the planks. The boards were apparently placed in that position to facilitate access to the building from the hop-up. 20The two removed boards can be seen adjacent to the paint bucket in Photograph A. They appear more clearly in Photograph C, which appears to have been taken from the building. Photograph C also shows that the scaffolding on which the wooden boards were placed formed part of the modular scaffolding described by the primary Judge.

Removal of Plank 3 21As I have noted, the accident occurred on Monday, 2 April 2007. The primary Judge found (at [12]) that the wall adjacent to the hop-up had been painted on the previous Saturday, at the latest. Inspection of the bracket immediately after the accident revealed debris left over from the rendering of the wall. Since the rendering had to be completed at least three to five days before painting could commence, it followed that the debris must have been lying on the bracket since at least the previous Wednesday, 28 March 2007. Accordingly, his Honour found that Plank 3 had been removed from the hop-up no later than the previous Wednesday and had not been replaced in the period leading up to the accident (at [27]). 22Given the dangerous state of the hop-up with Plank 3 removed, his Honour was satisfied that it had not been removed by the scaffolders. He was also "quite sure" (at [27]) that: the protruding tie-wire at the end of the bracket, the cut or broken wires at the transom end, the missing boards, the gap between the transom and the ends of the boards showing that they had moved and the splayed bracket were all there to be seen and would, if any one had ... noticed, have immediately warned of the danger. 23His Honour later found (at [42]) that Plank 3 had "almost certainly" been removed by the renderers in order to enable them to perform work on the wall adjacent to the hop-up.

Inspections 24Parkview's site supervisor was Mr Chaar, who had been in the industry for twenty years. One of the safety issues repeatedly raised by Parkview at its "toolbox" meetings with subcontractors and by other means was the importance of not interfering with scaffolding (at [14]). His Honour accepted Mr Chaar's description of the system in place, but also pointed to a difficulty with it (at [14]): if a tradesperson required scaffolding to be moved or adjusted so that the work could be done, the appropriate course was to notify Parkview, which would then arrange for the scaffolder to take the appropriate steps. However, there can be no doubt that from time to time tradespersons, perhaps under time pressures or simple impatience with the rules, removed or adjusted scaffolding so they could get on with the job. The evidence makes it clear that this is an endemic problem on construction sites and had occurred on a number of occasions on this site. (Emphasis added.) 25A safety committee comprising representatives from Parkview and subcontractors met regularly to inspect the whole site and to document any safety risks. A site safety compliance inspection record was maintained by Parkview and had to be completed after a safety committee inspection. The last such record for the building site prior to the accident was dated 19 March 2007, two weeks before the accident (at [15]). 26One of Mr Chaar's tasks as a member of the safety committee was to inspect the site. If a component of the scaffolding was missing, the scaffolder was required to replace it and, until this was done, the area was to be closed off. Mr Chaar acknowledged that he had observed on a number of occasions that scaffolding had been tampered with (at [15]). 27Mr Chaar said that he carried out daily safety inspections, usually accompanied by a representative of the scaffolders. He said that this was necessary because of the high risk that tradespeople would interfere with the scaffolding in an unauthorised manner. Mr Chaar accepted that, although he was not a qualified scaffolder, he would have recognised the absence of a major component such as a board and ensured that, if the situation was dangerous, it would be remedied. In particular, if there were any gaps, the missing boards would immediately be replaced (at [16]). 28The primary Judge accepted (at [28]) that neither Mr Kahla (the principal of Blue Star) nor Mr Abrahim had removed Plank 3 on the hop-up. His Honour also found that, despite Mr Chaar's evidence, neither Mr Chaar nor Mr Hassian, Erect Safe's scaffolding foreman on site, was in the vicinity of the hop-up on the Friday or Saturday before the accident occurred.

The Accident 29Mr Abrahim had been employed by Blue Star at the site for about a month, working a five-day week. He arrived at work on the Monday at about 7am. Mr Abrahim did some touch-up work at Mr Kahla's direction in an area on the third level of Building G, but away from the hop-up. 30The primary Judge thought it likely that Mr Abrahim returned along the perimeter modular scaffold, but then stepped down onto the hop-up, not appreciating the danger. It was at this point that Mr Abrahim fell (at [38]).

Liability 31The primary Judge was satisfied that Erect Safe had been negligent in constructing the hop-up as it had. His Honour gave these reasons: 43 ... The evidence that tradespersons on building sites in general and, indeed, [on] this particular site, were wont to remove scaffolding where it was necessary or convenient to do so to enable them to undertake their work is overwhelming. The fact that it was thought that daily inspections were necessary and subcontractors were warned on a number of occasions about interference with the scaffold reflects the clearly perceived risk that this conduct was, if not endemic, certainly common. It was the duty of the scaffolder to construct a safe scaffold on a large building site in light of the practical realities and difficulties that such a site presented and, for that purpose, to have in mind not only that boards adjacent to buildings need to be removed so that certain jobs can be done but that, despite warnings that this must be left to the scaffolder, tradespersons often took it upon themselves to do so. The continuous presence of scaffolders on the site should have alerted them, if they were not already aware (a most unlikely possibility), of this problem. Since hop-ups are constructed near to the walls, there was a substantial, obvious and manifestly foreseeable risk that the board closest to the wall will need to be removed and hence might well be removed by a tradesperson, such as a renderer. 44 Ensuring that the bracket (or brackets) would not splay was essential to the safety of the platform. The method chosen here was to tie the third board to the bracket and the transom. It was obvious that, should this board [be] removed, as was certainly foreseeable, indeed distinctly likely, the platform would thus be rendered dangerous. The obvious solution was, at least, to tie the second board to the bracket and the transom, together with the third board (to prevent it from tipping over and falling). ... 45 ... Once it be accepted that there was a substantial risk that tradespersons might well take it upon themselves, despite the warnings, to remove the board closest to the wall, commonsense itself without any expert knowledge would have required the tying of the second board and, perhaps, for extra safety, also the third board. Both [experts called by the parties] agreed that an "easy to do" and "sensible response" to the risk created by the likelihood of the third board being removed would be to secure the second board, which would hold the hop-up in place. 32The primary Judge found (at [46]) that Parkview was well aware of the propensity of tradespersons to remove scaffolding. It was this very risk that had led to the repeated warnings to subcontractors and to Mr Chaar's regime of regular inspections. His Honour rather doubted that Mr Chaar conducted daily inspections as he had claimed, given that Plank 3 had been missing for at least five days (his Honour actually said a week) before the accident. But if Mr Chaar had inspected the hop-up, he did not notice the problem, even though the missing plank would have been obvious. 33His Honour continued as follows: 46 ... Any more than a casual glance of the remaining two boards, with the question of safety in mind, would immediately had demonstrated that the second board was not tied and the bracket, not being held, was at risk of splaying. Mr Chaar said that the missing board alone would have been a danger signal requiring immediate attention. I am quite satisfied that his experience was sufficient to have alerted him, had he actually looked at the hop-up with a view to being satisfied that it was safe, to the loose second board, the gap that had opened up and the unsupported bracket on which it lay, thus of the danger this set-up represented. 47 Since it must also have been clear to Mr Chaar that renderers were likely to need the removal of boards that were close to the walls that needed to be rendered and he was responsible for coordinating the subcontracting work, I think it should be inferred that he was aware of the rendering work being undertaken on the wall in the vicinity of the hop-up platform and, thus, alerted to the real risk that the renderers might remove the third board and might well not replace it. ... 34His Honour concluded that Parkview was entitled to rely on the expertise of Erect Safe in the construction of the scaffolding. It had therefore satisfied its duty of care in relation to the construction of the scaffolding by employing Erect Safe (at [48]). But once the scaffolding had been constructed, it was necessary to ensure that it remained safe. Given the risks posed by the propensity of tradespeople to remove scaffolding, a system of regular and frequent inspection was "obviously essential" (at [49]). 35Parkview's system involved a monthly inspection by the safety committee and a monthly inspection by Mr Hassian, usually with someone from Parkview. In addition, Mr Chaar's own evidence was that he regarded daily inspections as necessary (at [50]). Parkview thus clearly accepted responsibility for frequent inspections. His Honour found (at [51]) that: Parkview was well aware of the risk of removal of boards adversely affecting the safety of the scaffold and was in breach of its duty to [Mr Abrahim] by not ensuring that regular and frequent inspections were undertaken by a person of appropriate skill directed to checking the safety of [the] scaffold where it had been tampered with, such as had occurred here, especially where it knew that renderers needed to remove boards and might do so themselves and that renderers had been working in the vicinity of the hop-up from which [Mr Abrahim] fell.

Causation 36The primary Judge rejected (at [56]) Parkview's submission that its failure to inspect the scaffolding was not a "necessary condition" of Mr Abrahim's injury, within the meaning of s 5D of the Civil Liability Act 2002 ("CL Act"). Parkview contended that the scaffolding had been deliberately interfered with by a person for whom it was not responsible. His Honour held, however, that this was not a case where it was sought to make Parkview liable for the deliberate act of a third party. Rather, its negligence was in failing to carry out: adequate inspections to ensure that [the] potential removal [of planks], if it occurred, was remediated and did not lead to an unsafe scaffold. 37His Honour continued (at [56]): An appropriate inspection by Mr Chaar of the hop-up platform would have revealed ... that the bracket was not held in to the boards and was liable to splay and therefore that either one or the remaining boards were liable to fall should someone walk or stand on them. The failure to inspect was therefore directly linked to the fact that it was unsafe when [Mr Abrahim] moved onto it and thus was a necessary condition of his fall and, thus, his injuries. 38Erect Safe's negligence was a necessary condition of the occurrence of Mr Abrahim's injury, for these reasons (at [57]): [Erect Safe] was well aware of the risk that the third board might be removed by a tradesperson and not replaced and retied but failed to take an obvious and easily undertaken step of tying the middle board, either by itself or together with the third board to avoid the substantial risk that such a removal would present. The likelihood that the bracket would splay was precisely the risk which led to the tying of the third board, the removal of which was reasonably foreseeable, and thus the risk revived unless the bracket were otherwise secured by tying the second board to it. It was the duty of Erect Safe to construct the hop-up with the risk of removal of the third board in mind. This failure was "a necessary condition of the occurrence of the harm" to [Mr Abrahim]. ... Where [Mr Abrahim's] injury occurred because the scaffolding was so constructed as to be foreseeably rendered unsafe by likely events, even though by the act of third persons, it is appropriate that the scope of Erect Safe's liability should extend to [Mr Abrahim's] injury.

Damages 39The only issue as to damages in this Court is whether the primary Judge's allowance for economic loss was excessive. His Honour found that Mr Abrahim, who was nearly 37 at the date of the trial, was totally incapacitated for work (at [81]). His Honour considered that, but for his injuries, Mr Abrahim would have worked full time until the retiring age of 67. 40The evidence showed that Mr Abrahim was earning $800 per week net at the time of the injury, while the pay of a painter at the date of trial was $900 per week. His Honour allowed $850 per week for the 292 weeks between the accident and the judgment. This amounted to $248,200, to which $27,302 had to be added for past loss of superannuation. 41His Honour calculated damages for future economic loss by assessing Mr Abrahim's earning capacity at $900 per week for the balance of his working life, and allowing fifteen per cent for vicissitudes of life. This produced a figure of $628,830 for future economic loss, to which was to be added $69,171.30 for future loss of superannuation.

Apportionment 42In Judgment No 2 the primary Judge explained his decision on apportionment as follows: 4 Both scaffolder and builder were aware of the danger posed by workmen removing or interfering with scaffold. Both were aware that this happened, if not often, certainly with dangerous frequency. In brief, the scaffold was safe so long as it was not interfered with, in particular by removal of the plank closest to the wall. Both the scaffolder and the builder were aware that interference of this kind was likely. Each had a duty to ensure that ... thereby the scaffold was not rendered unsafe, the former by tying the second plank to the support so that, when the outside plank was removed, the support would not move and the latter, by undertaking its inspection regime, would ensure that unsafe scaffolding was repaired. It was, however, obviously possible that the interference might occur between inspections or that the dangerous effect of the interference might not be noticed. Having regard to the time frame mentioned in the principal judgment, the builder had a number of opportunities, had the asserted programme of inspection been undertaken, to observe the fact that the platform was unsafe. At the same time, prevention of the problem in the first place was plainly the preferable course and would have avoided the risk that the system of inspection on what was a busy worksite might fail. Conclusion 5 During argument, I was minded to think that the scaffolder and the builder should be regarded as equally responsible. However, on further consideration bearing in mind the matters referred to above I have concluded that the scaffolder's contribution to and responsibility for the accident should be assessed at 60% and the builder's at 40%.

Erect Safe 43Mr Cavanagh SC, who appeared with Mr Gow for Erect Safe, challenged the finding that it had breached the duty of care it owed to Mr Abrahim. Mr Cavanagh relied on four arguments. 44First, the primary Judge had made a number of findings not open on the evidence. In particular, it was not open to his Honour to find that at the time the hop-up platform was assembled, it was reasonably foreseeable to Erect Safe that the platform would be tampered with in the specific manner that occurred. Mr Cavanagh acknowledged that there was a general risk that contractors would tamper with scaffolding, but he submitted that it was not foreseeable that someone would leave the hop-up platform in an unsafe state and that it would remain in that state notwithstanding Parkview's system of inspection. Moreover, the contract between Erect Safe and Parkview did not require Erect Safe to carry out inspections, except in limited circumstances, and did not impose any maintenance role on Erect Safe unless directed by Parkview. 45Secondly, the primary Judge made no reference to ss 5B and 5C of the CL Act and thus failed to direct his attention to the matters identified in those provisions. Mr Cavanagh accepted that Parkview's system had failed, but argued that in assessing whether the risk was "not insignificant" (s 5B(1)(b)), Erect Safe was entitled to assume that Parkview would implement and adhere to its own system of instructions to contractors and regular inspections. 46Mr Cavanagh submitted that the primary Judge had also failed to consider the burden on Erect Safe of taking precautions to avoid the risk of harm (s 5B(2)(c)). Mr Cavanagh pointed out that s 5C(a) provides that the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible. He maintained that if Erect Safe was negligent in not tying both Planks 2 and 3 on a three-board hop-up, it would be forced to tie down all boards on scaffolding platforms, not merely on hop-ups. This would be an unreasonable burden. 47Thirdly, the primary Judge had failed to take into account that Erect Safe had not contravened any binding safety standards and had acted in accordance with industry practice in its approach to the assembly of hop-ups. 48Fourthly, the primary Judge had incorrectly applied hindsight reasoning. He imposed a duty on Erect Safe to prevent the specific harm that in fact occurred and failed to consider the correct question, namely whether Erect Safe had failed to take reasonable care to avert a foreseeable risk. 49Mr Cavanagh challenged the primary Judge's finding that Erect Safe's negligence caused Mr Abrahim's injuries. Mr Cavanagh pointed out that the renderers, in order to remove Plank 3, would have had to untie and remove the two wooden planks laid cross-wise on the hop-up. He submitted that the evidence indicated that Plank 2 had probably been removed from the hop-up and replaced prior to the accident but without being retied to the bracket. On this basis, the likelihood was that someone had removed not only Plank 3, but also Plank 2 from the hop-up before the accident occurred. It followed, so Mr Cavanagh argued, that Mr Abrahim had not proved that the renderers, even if both Planks 2 and 3 had been secured, would not simply have cut the tie-wires to both planks. Accordingly, Mr Abrahim had not satisfied the requirement in s 5D(1) of the CL Act that Erect Safe's negligence was a necessary condition of the occurrence of the harm. 50Erect Safe also challenged the primary Judge's finding that Blue Star had not been negligent. Mr Cavanagh submitted that Blue Star had clearly breached its non-delegable duty to exercise reasonable care to provide a safe place of work and a safe system of work. In addition, so he argued, Blue Star had had the opportunity to ascertain that the place of work was unsafe for Mr Abrahim, yet had taken no steps to warn him or otherwise ameliorate the danger. On this basis, he submitted that Blue Star should be liable to contribute one-third of the judgment sum. In oral submissions, Mr Cavanagh also adopted Parkview's submissions, in so far as they challenged the finding concerning Blue Star.

Parkview 51Parkview submitted that the primary Judge erred in finding that Parkview owed Mr Abrahim a duty of care without referring to Leighton Contractors Pty Ltd v Fox [2009] HCA 35; 240 CLR 1. On the authority of that case, Parkview owed a duty of care to Mr Abrahim only if it was not reasonable to engage a specialist subcontractor (in this case Erect Safe), or if there were special circumstances making it necessary for Parkview to retain and exercise a supervisory power over the building site. The primary Judge had also overlooked the authorities which show that caution is required before finding a person liable to protect another from the deliberate misconduct of a third party. Here the removal of Plank 3 by the renderers amounted to deliberate misconduct for this purpose. 52Mr Watson SC, who appeared with Mr Guihot for Parkview, next submitted that the primary Judge had imposed a duty on Parkview to ensure that the harm was averted, rather than a duty to exercise reasonable care to avoid harm. Consequently, his Honour addressed the wrong question. Moreover, by failing to refer to ss 5B and 5C of the CL Act, his Honour had failed to apply the statutory criteria and thus erred in law. 53Mr Watson also challenged the primary Judge's finding on causation. Mr Watson submitted that his Honour should have made findings as to what a non-negligent inspection regime would have entailed and explained how such a system would have identified and eliminated the risk. 54Finally, Mr Watson contended that, in finding that Blue Star was not negligent, the primary Judge had made "fundamental errors". In particular, his Honour failed to appreciate that Blue Star, as Mr Abrahim's employer, owed him a non-delegable duty to provide a safe system of work, including a safe means of access to and from the workplace. In any event, Mr Kahla, the principal of Blue Star, was aware of the particular risk and failed to warn Mr Abrahim to avoid the hop-up.

Blue Star 55Blue Star supported the findings of negligence and causation against Parkview and Erect Safe. It also supported the finding that Blue Star had not been negligent, although not with any great conviction. In addition, Mr King SC, who appeared with Mr Halligan and Mr Lee for Blue Star, submitted that the appellants had not demonstrated that it was more probable than not that, but for the actions of Blue Star, Mr Abrahim would not have fallen. 56If, contrary to its submissions, Blue Star was found to have been negligent and to have caused Mr Abrahim's injuries, Mr King contended that its contribution should be limited to five to ten per cent of the total damages. He also contended that the award of damages was excessive having regard to Mr Abrahim's sporadic pre-accident employment history and the lack of evidence that he could expect to have a permanent position as a painter with Blue Star or any other prospective employer. Mr King submitted that the awards for past and future economic loss should be adjusted downwards by 30 to 35 per cent to reflect these matters. Parkview and Erect Safe adopted Blue Star's submissions on damages.

Mr Abrahim 57Mr Abrahim, like Blue Star, sought to uphold the findings of negligence and causation made against Parkview and Erect Safe. Mr Abrahim preferred that only Parkview and Erect Safe be held liable for his injuries (because of the limitations on damages awards against employers) but, if necessary, joined in the submission that the finding in favour of Blue Star should be overturned. However, Mr Dooley SC, who appeared with Mr Hickey for Mr Abrahim, urged this Court, if Blue Star was held liable, to apportion responsibility "overwhelmingly" to Parkview and Erect Safe. 58Mr Abrahim supported the primary Judge's assessment of damages for economic loss. Mr Dooley justified his Honour's apparent discounting of Mr Abrahim's sporadic employment record on the ground that Mr Abrahim might well have been able to increase his earnings in the future beyond the $900 per week that he would have been earning at the date of the trial.

Breach of Duty 59Mr Abrahim's amended statement of claim ("ASC") pleaded that his injuries were caused by Parkview's negligence. The ASC set out no less than 30 particulars of negligence. Most of these were framed in general terms, such as Parkview's alleged failure to provide a safe place of work or its failure to provide Mr Abrahim with suitable and sufficient access to and egress from his place of work. Other particulars were framed in apparently absolute terms, such as Parkview's alleged: failure to ensure that the scaffolding plank upon which [Mr Abrahim] stepped was adequately supported ... 60The primary Judge did not clearly identify the duty of care owed by Parkview to Mr Abrahim, although his Honour referred to a number of matters indicating that Parkview did owe Mr Abrahim a duty of care. These matters included the risks posed by the practice of subcontractors removing planks from the hop-ups without authority and Parkview's acknowledgement that a system of daily inspections was "necessary to ensure the integrity of the scaffold". 61As I have noted (at [35] above), his Honour found (at [51]) that Parkview was in breach of its duty: by not ensuring that regular and frequent inspections were undertaken by a person of appropriate skill directed to checking the safety of [the] scaffold where it had been tampered with. This would seem to imply that his Honour considered that Parkview was under a duty to take reasonable care to detect and remedy defects in the scaffolding that presented a safety risk to workers (and presumably others) who came onto the building site. 62It is a little surprising that the primary Judge did not refer to Leighton Contractors v Fox, since that authority was apparently the subject of debate at the trial. A more pertinent authority, because the facts are much closer to those of the present case, is Ilvariy Pty Ltd v Sijuk [2011] NSWCA 12, to which his Honour's attention was drawn, but which is not mentioned in the judgment. In that case, an experienced brick-cleaner was injured when he fell through a hole in scaffolding on a residential building site. He sued both his employer and the builder in charge of the site. 63The scaffolding had a sign on it saying it was safe but an unknown person had removed a piece of the scaffolding, leaving a gap through which the brick-cleaner fell. The case against the builder was that it had failed to inspect the scaffolding on the morning of the accident. The builder submitted that its only duty was to co-ordinate trades and since lack of co-ordination had nothing to do with the accident, there was no relevant duty and therefore no breach of duty. 64Allsop P, with whom Hodgson and Whealy JJA agreed, rejected the builder's argument: 19 ... The question is whether ... the builder having possession of the site, owed any duty to tradesmen such as Mr Sijuk to exercise reasonable care to make the site safe for them to work upon. ... A building site and scaffolding on a building site can be dangerous places. People work at heights, machines are in use and other dangers exist. As the occupier with possession of the site for the undertaking of its contractual obligations for its own commercial benefit, a builder owes a duty to exercise reasonable care to avoid the exposure of persons coming on to the site to risk of injury from the dangerous condition of the site. In seeking to gainsay the existence of the duty of an occupier, the [builder] referred to what Brennan and Dawson JJ said in [Papatonakis v Australian Telecommunications Commission [1985] HCA 3; 156 CLR 7] at 30: ... where an independent contractor carrying on a particular trade is engaged by an occupier to work on his premises, the occupier is not under a duty to give warning of a defect in the premises if tradesmen of that class are accustomed to meeting and safeguarding themselves against defects of that kind. 20 The logical syllogism that the [builder] sought to engage from this statement was that since Mr Sijuk should, in the exercise of due care for his own safety, have examined the scaffolding before he began work, any defect that he would have found was a defect in the premises that tradesmen such as Mr Sijuk were accustomed to meeting and safeguarding themselves against. 21 I reject this submission. This way of putting the matter transforms contributory negligence into a complete defence to the claim. It is not a fair application of what Brennan and Dawson JJ were saying. Tradesmen of Mr Sijuk's class are not accustomed to dealing with dangerous scaffolding, especially scaffolding that was said by a sign to be safe. Undoubtedly an occupier, especially a non-technical occupier, is entitled to expect that a tradesman will deal with dangers or defects which his trade skills allow him in the ordinary way to perceive and deal with. That does not mean that a builder is free not to exercise any reasonable care about the safety of the building site of which it has possession. 65Leighton Contractors v Fox, on which Mr Watson relied, was a very different case both to Ilvariy v Sijuk and the present case. In Leighton Contractors v Fox, an independent contractor was injured whilst cleaning concrete delivery pipes on a building site. The injury was caused by the negligence of another independent contractor engaged in the same task. The procedure was within the expertise of the contractors and was not subject to any supervision by the builder in overall control of the site. 66The High Court (at [21]) distinguished between the duty owed by a principal to independent contractors and the duty owed by an employer to its employees. Their Honours pointed out that an employer owes a personal, non-delegable duty to its employees to ensure that reasonable care is taken. This is a more stringent obligation than a duty to take reasonable care to avoid a foreseeable risk of injury to a person to whom a duty is owed. Nevertheless, the Court accepted (at [20]), on the authority of Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1; 160 CLR 16, at 47-48, that an entrepreneur who organises an activity involving a risk of injury to those engaged in it is under a duty to exercise reasonable care to minimise that risk. The duty of care does not require the entrepreneur to retain control of working systems if it is reasonable to engage the services of independent contractors who are competent to control their systems of work without supervision. But a builder in occupation of a site owes a duty to persons coming onto that site to use reasonable care to avoid physical injury to them, where the risk of that injury is foreseeable: at [48]; see also Miljus v Watpow Constructions Pty Ltd [2012] NSWCA 96; 82 NSWLR 597, at [72], per Whealy JA (with whom Bathurst CJ and McColl JA agreed). 67Parkview was the head contractor in overall control of the building site. As the primary Judge found (at [48]), Parkview was the principal of the project and the occupier of the site. As such, it owed a duty to Mr Abrahim to exercise reasonable care to prevent him from sustaining injury by reason of dangers on the site. The duty was not to ensure his safety; it was only to exercise reasonable care to prevent him and other persons working on the site from being injured: Roads and Traffic Authority (NSW) v Dederer [2007] HCA 42; 234 CLR 330, at [43], per Gummow J. 68The terms of s 5B of the CL Act have been set out above (at [13]). The risk that Mr Abrahim says that Parkview should have guarded against was that he would sustain injury by reason of the unsafe condition of the scaffolding on which he walked while performing his duties on site. That risk crystallised in the present case when Plank 3 on the three-board hop-up was removed and its tie-wire cut without any other safety mechanism being added to secure the hop-up. 69This risk was not merely foreseeable by Parkview (s 5B(1)(a)), it was actually foreseen. Parkview, through Mr Chaar, participated in the toolbox meetings at which the renderers were repeatedly admonished for removing planks on the hop-ups without going through the appropriate procedures. In a letter written the day after Mr Abrahim's accident, Erect Safe wrote to Parkview pointing out that it (Erect Safe) had brought to Parkview's attention on "numerous occasions ... that trades [had] been dismantling scaffold". 70Mr Chaar accepted in his evidence that Parkview reserved to itself the right and the obligation to carry out a daily inspection of the scaffolding. He acknowledged that it was his responsibility to undertake daily inspections and to ensure each morning that the site was safe for use. To assist him in this task he was frequently accompanied by a scaffolder, although it was not Erect Safe's contractual responsibility to carry out such regular inspections. The purpose of the inspections, as Mr Chaar explained, was to see whether there were any hazards, such as holes or gaps in the scaffolding caused by the removal of planks. The unauthorised removal of Plank 3 from the hop-up was obviously one of the hazards that the inspection was designed to detect and remedy. 71Mr Chaar was plainly aware of the risks created by the unauthorised removal of scaffolding, in particular the removal of Plank 3 on the hop-ups to enable renderers or others to gain access to the adjacent wall. If a plank was to removed, subcontractors were instructed to notify Parkview (not Erect Safe) that removal was required. Mr Chaar or one of his colleagues would then arrange for Erect Safe to carry out the work. As I explain later (at [92]), if Plank 3 was to be removed, Erect Safe would affix Plank 2 to the bracket by means of wires to ensure that the hop-up remained stable and safe. It is inconceivable that Mr Chaar did not appreciate that, if Plank 3 was removed from a hop-up and the tie-wire cut without some additional safety measure being put in place, there was a risk that the hop-up would become unstable, and that one of the remaining planks might give way. 72The risk that was both foreseeable and foreseen was clearly not insignificant (s 5B(1)(b)). If any one of the many workers on this building site stepped onto a hop-up which was unsecured by any wires, or by any other reliable mechanism, there was a real risk of catastrophic injury or death. This is not a matter of reasoning by hindsight. The very point of the inspection regime set up by Parkview, and for which it accepted responsibility, was to detect defects of the kind that caused Mr Abrahim to sustain serious injuries. 73Given the significant risk that very serious harm would occur if Parkview did not take reasonable care to institute a system of satisfactory inspections of the scaffolding, a reasonable person in Parkview's position would have taken precisely the precautions that it accepted as its responsibility to perform: a daily inspection of the site calculated to detect safety risks. Such risks included those created by the removal of a plank from scaffolding, particularly the removal of Plank 3 from a hop-up. That the burden of such a precaution was not excessive (s 5B(2)(c)) is demonstrated by the fact that Parkview recognised that daily inspections were essential. 74The primary Judge found (at [51]) that Parkview breached its duty by not ensuring that regular inspections of the site were conducted by a person having the appropriate level of skills. He did not specify the precise frequency of the inspections that should have taken place. It may well be that he did not do so because he considered it obvious that Parkview should have inspected the scaffolding between the Wednesday, when (at the latest) Plank 3 was removed, and the following Monday, when the accident occurred. On the basis that reasonable care required daily inspections of the site, the failure to detect the obvious danger created by the removal of Plank 3 from the hop-up, either because no inspection occurred or inspections were carried out inadequately, constituted a breach of Parkview's duty of care to Mr Abrahim. 75I should add that the authorities dealing with a defendant's liability for the criminal acts of third parties, such as Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; 205 CLR 254 and Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; 239 CLR 420, have little to do with the present case. Parkview knew of the risk caused by the removal of Plank 3 from hop-ups on the building site. It had a system in place to minimise that risk, but failed to implement its own system. 76It is equally clear that, had Parkview discharged its duty of care, the danger constituted by the removal of Plank 3 would have been detected and remedied before the accident occurred. As the primary Judge found, the absence of Plank 3 from the hop-up would have been obvious to anyone inspecting the area. Once it was seen that Plank 3 was missing, it would also have been obvious that its tie-wire, the sole means of securing the hop-up, had been cut. The severed tie-wire was clearly visible. The test of whether negligence was a necessary condition of the occurrence of harm is entirely factual, turning on proof by the plaintiff of relevant facts on the balance of probabilities in accordance with s 5E of the CL Act. That task does not involve policy judgments, and requires no more than the application of a "but for" test of causation: Wallace v Kam [2013] HCA 19; 297 ALR 383, at [14]-[16], per curiam. On that test, Parkview's negligence was therefore a necessary condition of the occurrence of the harm (s 5D(1)(a)). 77Parkview did not suggest that if factual causation was established, this Court should not find it appropriate for the scope of its liability to extend to the harm suffered by Mr Abrahim (s 5D(1)(b)).

Conclusion 78I have analysed the finding of negligence against Parkview by reference to the provisions of the CL Act because his Honour did not do so. It is clearly desirable for a trial court to make express reference to the statutory criteria and a failure to do so may be reason enough to conclude that the question of breach of duty was not determined properly: Adeels Palace v Moubarak, at [11], [27], [39], per curiam; see also Mobbs v Kain [2009] NSWCA 301; 54 MVR 179 at [34], per McColl JA (with whom Macfarlan JA agreed); Shoalhaven City Council v Pender [2013] NSWCA 210 at [7], per McColl JA (with whom Barrett JA agreed). If the primary Judge erred by not referring to ss 5B and 5C of the CL Act, it is open to this Court, having regard to the undisputed facts, to determine whether the finding of negligence against Parkview should stand. Mr Watson did not attempt to dissuade the Court from this course of action and it is the approach that should be adopted. 79For the reasons I have given, the finding that Parkview breached its duty of care to Mr Abrahim should be upheld, as should the finding that Parkview's negligence caused Mr Abrahim's injuries.

The Challenge to the Finding of Negligence 80Erect Safe did not dispute that it owed contractors on site a duty to exercise reasonable care in constructing or assembling scaffolding to avoid the risk of physical injury resulting from defects in the scaffolding. Erect Safe contended, however, that it had exercised reasonable care in assembling the hop-up. In particular, Mr Cavanagh submitted that Erect Safe had acted in accordance with industry standards and uniform industry practice and thus should not be found to have breached its duty of care.

Industry Standards and Practices 81Mr Cavanagh appeared to suggest that the expert evidence was to the effect that the construction of the hop-up complied with the applicable industry standards. If that was what Mr Cavanagh intended to convey, the evidence does not establish that proposition. 82Two experts gave evidence. Mr Cowling, a civil and construction engineer, was called by Mr Abrahim and prepared several reports. Mr Costin was called by Erect Safe. Curiously enough, Mr Costin's qualifications are not recorded in the Appeal Books as his report was not tendered and he was not asked about his qualifications when he gave oral evidence. However, it appears to have been common ground that Mr Costin had relevant expertise. 83The two experts prepared a joint report and gave concurrent evidence. Both expressed the view that the hop-up as constructed and with tie-wire and planks in place was not unsafe and was capable of bearing the loads to which it was likely to be subjected. But they expressed different opinions as to whether the hop-up, as constructed, complied with applicable standards. 84The experts identified the relevant standards, but we were not taken to the standards themselves and they do not appear to have been admitted into evidence. In any event, the experts agreed that the standards were "not prescriptive". Mr Cowling said that the standards required scaffolding to be fit for its purpose and, in his opinion, the scaffolding (by which he meant the hop-up as constructed) was not "fit for purpose". Mr Costin contented himself with the observation that: there was nothing definitive within the Standards to say that the scaffolding did not comply. 85Nor does the evidence support the proposition that the hop-ups were assembled in conformity with a uniform industry practice. The experts were asked whether the method of construction of the hop-up was consistent with industry practice as at 2 April 2007. The answer was that neither could say what industry practice was at the time. Mr Costin expanded upon this answer in his oral evidence, indicating that in his experience the usual method of securing hop-ups was to use a tie-bar (a metal bar running alongside a plank, between the bracket and the transom). He had rarely seen a hop-up secured just by tie-wire. 86When giving oral evidence, Mr Costin conceded that it would be sensible, when assembling a three-board hop-up, to tie not only Plank 3, but also Plank 2: DOOLEY: Do you not think that it would have been appropriate to put two ties around the second plank at either end, the transom end, and the hop-up end, as well as for instance two ties around the third plank at both the hop-up end and the transom end? WITNESS COSTIN: At what point in time? DOOLEY: At the beginning when it is first set in place? WINESS COSTIN: I believe that the one tie at the end of each of the third plank, held the three planks adequately and this was confirmed to me when we did the set up at Erect Safe's building. HIS HONOUR: It would hold it adequately, if it were there? WITNESS COSTIN: That's correct. HIS HONOUR: But you have heard that tradesmen - and I don't suppose it is a surprise to you - tradesmen do remove brackets when it's convenient to do so? WITNESS COSTIN: Mmm. HIS HONOUR: And they've done it a number of times, is that right? WITNESS COSTIN: Yes. HIS HONOUR: And also I think it's fair to assume that indeed on this particular case it was a tradesman who removed this, one would think, rather than a scaffolder? WITNESS COSTIN: Yes. HIS HONOUR: And so that when it is removed of course it's not safe. I think that's a given? WITNESS COSTIN: Yes. HIS HONOUR: We're agreed. And therefore, would it not be common sense to say this: Tradesmen remove these boards from time to time. It is unpredictable. We can't be there all the time. We don't have a camera on the board. Hopefully we would see it when we go and do our inspections, but of course it might be done just after we inspect and then we wouldn't notice it until we next inspect it. That kind of reasoning, do you agree, is common sense? WITNESS COSTIN: I agree, yes. HIS HONOUR: Therefore you would ask yourself: Well, if the hop-up - because a hop-up has two issues: One, it is on the hop-up that the board is most likely to be removed, because it's the hop-up which is against the building where all this other work is taking place, agree? WITINESS COSTIN: I agree. HIS HONOUR: And therefore, thinking about that problem, there are two ways: First of all, you issue horrific warnings that you know, "You'll get various parts of your anatomy cut off if we catch you removing bits of planking", that's one way in which you do it. You warn the workers "You are just not to do it". That appears to be part of the solution in this case. You don't have to worry about that, but I'm letting you know, you probably heard the evidence, workers were warned not to tamper. However, as one expects, tampering nevertheless occurred. The next thing that you might do is, if they tamper, they are most likely only to tamper [with] the board that is next to the building because they're getting rid of it in order to do their work. And therefore, if we fix the second plank, we at least know that the whole thing is not going to come apart? WITNESS COSTIN: I agree. HIS HONOUR: That strikes me as easy to do and a sensible response to the problem? WITNESS COSTIN: I agree. (Emphasis added.) Mr Cowling agreed with Mr Costin's responses. 87Mr Costin's evidence does not support the proposition that three-board hop-ups which use tie-wire as the safety mechanism are invariably assembled or re-assembled with only Plank 3 secured to the bracket and transom. 88Mr Hassian's evidence also does not support that proposition. Mr Hassian said that he was aware that renderers sometimes needed to remove one (not two) of the planks on a three-board hop-up, in order to gain access to the wall adjacent to Plank 3. When that occurred, it was Plank 3 that was removed. Mr Hassian agreed that if the wire attached to Plank 3 was removed, the other two planks became dangerous because "that one [which] is tied [is] keeping it all together, secure". He then explained the practice he adopted when he was asked, as he was from time to time, to remove Plank 3 to facilitate the work of renderers or painters: Q. But where you've got a situation where, for example, the renderer needs to have one board removed to do the particular wall - A. Yes. Q. - and of course when the renderer's finished, the painter's going to come and do the painting?A. Yes. Q. So the board will need to be replaced?A. Yes. Q. So you take the board off for the renderer?A. Yes. Q. And if you were going to take that board off safely, wouldn't it mean you would have to tie - A. You have to tie - Q. - the second board down?A. Yes. Q. Because otherwise it would be unsafe to work on for the renderer?A. Yes. Q. And when you put the board back when the renderer was finished his job, which you would normally do, yes - A. Yes. Q. - would you untie where you had previously tied the second board and then retie the first, or would you retie the replacement board - or would you simply retie the replacement board?A. Well, if you're going to take one board off just for the renderer-- Q. Yes.A. - you've tied the second board. Q. Of course.A. Yes, and removed - Q. Now, when you put the board back though, because the painter's got to come?A. Yes. Q. Wouldn't you put the board back?A. You put the board back and you still tie it. Q. Yes, you would then tie that board?A. The last one, yes. You retie the last one, but you won't undo the second board. Q. You would leave it as it was?A. Yeah. Q. Is that right?A. Yeah, no need to undo it or anything like that. 89It is clear from this evidence that whenever Erect Safe removed Plank 3 from a hop-up to facilitate access by renderers or other tradespeople to the adjacent wall, and subsequently replaced Plank 3, the hop-up was secured by tie-wires attached to both Planks 2 and 3. Thus, although Mr Hassian indicated that Erect Safe always initially assembled its hop-ups with only Plank 3 secured by tie-wires, in practice some of Erect Safe's hop-ups had both Planks 2 and 3 secured by tie-wires. 90The evidence falls well short of establishing that Erect Safe's method of securing hop-ups on site conformed with a uniform industry practice. Many, if not most hop-ups are not secured by tie-wire, but by tie-bars. Erect Safe's own practice was to have two tie-wires in place (for Planks 2 and 3) when it was required to remove and replace Plank 3. Conformity with industry practice is a guide, not the determinant of whether a defendant has acted with reasonable care: Mercer v Commissioner for Road Transport (1937) 56 CLR 580, at 589, per Latham CJ; 593, per Rich, Evatt and McTiernan JJ; Dovuro Pty Ltd v Wilkins [2003] HCA 51; 215 CLR 317, at [34], per McHugh J; Cregan Hotel Management Pty Ltd v Hadaway [2011] NSWCA 338, at [70], per Giles JA (with whom Allsop P agreed) (a case under the CL Act). But no such conformity has been demonstrated in this case.

The Civil Liability Act 91The primary Judge did not refer to ss 5B and 5C of the CL Act in determining that Erect Safe had breached its duty of care to Mr Abrahim. I am prepared to assume that his Honour's failure to direct attention specifically to those provisions constituted an error of law. On that assumption, I nonetheless consider that his Honour's finding that Erect Safe breached its duty of care in assembling the hop-up should be upheld. 92The evidence to which I have referred demonstrates that Mr Hassian, and no doubt others within Erect Safe, were well aware that if Plank 3 was removed from a three-board hop-up, and the only means of securing the hop-up was a tie-wire attached to Plank 3, the hop-up was at risk of becoming unstable. In particular, there was a risk that the bracket would splay and one of the two remaining planks, not being secured by tie-wire, would be liable to give way. As has been seen, Erect Safe's own practice, when requested by Parkview to remove Plank 3 from a hop-up in order to facilitate access to the adjacent wall, was to tie Plank 2 to the bracket and transom to ensure that the hop-up was secure. When Plank 3 was restored to the hop-up, the wire securing Plank 2 was allowed to remain in place. 93Erect Safe, at the time the hop-ups on site were assembled or re-assembled (they were portable), was aware that some tradespeople had a propensity to remove planks to facilitate their work, particularly Plank 3 on a three-board hop-up. Moreover, Erect Safe was aware that some tradespeople did this on a regular basis without obtaining the requisite authority and without ensuring that the hop-up was in a secure state. Erect Safe also knew that this behaviour regularly took place notwithstanding that the principal contractor (in this case Parkview) repeatedly gave instructions to contractors that they were not to remove planks themselves but should ask the principal contractor to undertake or arrange the work. 94Mr Hassian knew that complaints had been made at toolbox meetings that the renderers had repeatedly dismantled scaffolding despite Parkview's warnings. Erect Safe's own letter of 3 April 2007 (see [69] above) demonstrated that it was well aware of the problem. The letter reflected Mr Hassian's evidence that Erect Safe was "continuously" telling Parkview that other trades were tampering with the scaffolding. It must have been obvious to Mr Hassian that Parkview's system of warnings and regular inspections was manifestly ineffective to eliminate or reduce to acceptable levels the dangerous practices adopted by contractors in dismantling scaffolding. 95Erect Safe did not adduce any evidence to suggest that the practices of tradespeople on this building site were unusual, or that the ineffectiveness of the preventive measures adopted by the principal contractor was an isolated or unusual phenomenon. On the contrary, Mr Hassian, who had many years of experience in the industry, and was the person responsible for assembling the hop-ups on site, acknowledged in his evidence that he was aware that people like renderers often removed planks without going through proper channels. The probabilities are that when Mr Hassian assembled hop-ups on site, he was aware that a hop-up affixed to the bracket and transom only by a wire attached to Plank 3 would create a significant safety risk if the plank was removed and no other measures were taken to secure the hop-up. If he was not so aware, he should have been. 96In my opinion, at the time Erect Safe assembled the hop-ups on site there was a foreseeable risk that workers would suffer harm by reason of the unauthorised removal of Plank 3 on a three-board hop-up, where the only mechanism employed to secure the hop-up was tie-wire affixed to Plank 3 (s 5B(1)(a)). In the light of Erect Safe's knowledge of and experience with the practices on building sites, including the practices of renderers and painters requiring access to walls adjacent to hop-ups, there is no element of hindsight reasoning in this finding. 97The risk was foreseeable notwithstanding that Erect Safe was under no contractual obligation to carry out inspections on the site. Similarly, the risk was foreseeable notwithstanding that Erect Safe was aware that Parkview intended to undertake a system of frequent inspections and to instruct contractors not to remove planks without authority. As I have explained, Erect Safe was aware that contractors on building sites frequently removed planks without authority, regardless of the instructions they received from the principal contractor. Erect Safe must also have been aware that no system of inspections could ensure that an unauthorised removal of Plank 3 (or any other scaffolding) would be immediately rectified so as to eliminate any danger to workers. An interval before the danger was detected and remedied was almost inevitable. 98The risk of injury to contractors on site was not insignificant (s 5B(1)(b)). Even allowing for the systems that Parkview intended to put in place, an expert and experienced scaffolder such as Erect Safe should have known that unless a hop-up was secured by some mechanism other than the tying of Plank 3, unauthorised actions by contractors such as renderers and painters could create situations fraught with danger for other contractors, albeit for relatively short periods. For obvious reasons, the likely harm, if an accident were to occur, was very serious indeed (s 5B(2)(b)). 99Mr Hassian's evidence suggested that using tie-wire on both Planks 2 and 3 at the time of assembly was a simple task, involving a few minutes of a scaffolder's time and a piece of wire. The burden of taking precautions to avoid the risk of harm from the unauthorised removal of Plank 3 would appear to be very slight indeed (s 5B(2)(c)). Mr Cavanagh's submission that upholding the finding of negligence would require scaffolders to reassess their procedures for all scaffolding lacks any evidentiary foundation. Modular scaffolding utilises different safety mechanisms to those used in hop-ups and is assembled differently. There was no evidence to suggest that there would be any increase in the precautions required when assembling modular scaffolding if scaffolders using tie-wire on hop-ups were required, in the exercise of reasonable care, to secure both Planks 2 and 3.

Erect Safe Was Negligent 100The primary Judge found that Erect Safe breached its duty of care to Mr Abrahim, without referring to ss 5B and 5C of the CL Act. When those provisions are specifically taken into account, as they should be in every case of alleged negligence covered by Part 1A of the CL Act, I would make the same finding as the primary Judge.

Causation 101Erect Safe's causation argument rests on the contention that Mr Abrahim did not prove that if Erect Safe had tied both Planks 2 and 3 when assembling the hop-up, the accident would have been prevented. The basis for this contention seems to be that there was no proof that the person or persons who had interfered with the hop-up would not have cut the tie-wire securing Plank 2, as well as the tie-wire securing Plank 3. Thus, so the argument runs, even if Erect Safe had tied both Planks 2 and 3 to the bracket and transom, Mr Abrahim had not established that the hop-up would have been in a safe condition at the time he sustained his injuries. 102Mr Cavanagh supported this contention by pointing to the presence, immediately after the accident, of debris on the bracket and transom at the points where Plank 2 rested. The debris indicated, so he argued, that Plank 2 must have been removed and replaced at some time prior to the accident. He said it should be inferred that those interfering with the hop-up had an interest in removing Plank 2 as well as Plank 3. 103This submission ignores the abundance of evidence that the practice adopted by the renderers was to remove only Plank 3 when they wished to gain access to the adjacent wall. This is exactly what happened when Erect Safe was asked by Parkview to partially dismantle a hop-up in order to allow the renderers to work on the adjacent wall. The evidence demonstrated that the renderers had no need to remove Plank 2 in order to perform their work. And his Honour expressly found (at [42]) that Plank 3 had been removed by the renderers. 104Moreover, the primary Judge rejected (at [10], [11]) the hypothesis that the debris in the area of Plank 2 showed that the renderers had removed it whilst the rendering took place. His Honour thought it more likely that the debris had collected in the gaps on the bracket and transom created by the splaying of the bracket. No cogent reason was advanced to disturb that finding. 105In my opinion, Mr Abrahim has proved on the balance of probabilities that Erect Safe's negligence caused him to sustain his injuries (ss 5D(1)(a), 5E). 106Mr Cavanagh also submitted that it was not appropriate for the scope of Erect Safe's liability to extend to the harm caused to Mr Abrahim (s 5D(1)(b)). He relied principally on two matters. First, at the time the hop-up was assembled it was safe. Secondly, Erect Safe had complied with its contractual obligations to Parkview. 107The question posed by s 5D(1)(b) of the CL Act is a normative one, namely whether it is appropriate for the scope of the negligent defendant's liability to extend to the physical injury in fact sustained by the plaintiff: Wallace v Kam, at [21]. Neither of the matters relied on by Mr Cavanagh warrants finding that it is not appropriate for the scope of Erect Safe's liability to extend to the injury sustained by Mr Abrahim. The first matter is of little relevance; the hop-up was safe only so long as Plank 3 remained in place with its tie-wire secured. The second matter may be relevant to apportionment, but it is not a basis for refusing to extend Erect Safe's liability to the harm that flowed from its negligence. 108For these reasons, Erect Safe's causation argument must be rejected.

Blue Star's liability 109Mr King did not seriously dispute that the primary Judge erred in finding that Blue Star had not breached the duty of care it owed to Mr Abrahim. As I have already pointed out, Blue Star, as Mr Abrahim's employer, owed him a personal, non-delegable duty to ensure that reasonable care was taken to prevent him from being injured while working on the site. If, as I have found, Parkview and Erect Safe each breached its duty of care to Mr Abrahim, Blue Star must have been in breach of its own non-delegable duty to him. It is not open to Blue Star to escape liability by contending that it relied on the expertise of Erect Safe or the inspection and warning regime instituted by Parkview. 110Mr King's fall-back position was that if Blue Star was liable only by reason of the non-delegable nature of its duty, its responsibility for the accident was minimal and that low level of responsibility should be reflected in any apportionment of liability for the damages award. The difficulty with this submission is that his Honour found (at [52]) that Mr Kahla, the principal of Blue Star, was actually aware of the missing Plank 3 at the time the accident occurred and had been aware of the condition of the hop-up since the previous Saturday. Nevertheless, Mr Kahla did not point out to Mr Abrahim that Plank 3 on the hop-up was missing or that the wire joining Plank 3 to the bracket had been cut. Nor did Mr Kahla warn or instruct Mr Abrahim that he should not walk across the hop-up when a plank was missing. It is true that his Honour found (at [52]) that both Mr Kahla and Mr Abrahim had painted from the hop-up on the Saturday. But that fact, involving in all likelihood a separate breach of duty by Mr Kahla, could not detract from Blue Star's duty to exercise reasonable care for Mr Abrahim's safety on the Monday. 111The primary Judge found that Mr Kahla had no occasion to consider whether the hop-up was safe and did not appreciate that the second board was at risk of falling. But Mr Kahla's position in his evidence was that he did not know that Plank 3 was missing, but if he had known he would not have allowed Mr Abrahim to work there and would have instructed him not to walk across the hop-up. His Honour rejected Mr Kahla's evidence that he was unaware of the missing plank and found affirmatively that he did know. It is very difficult to see how Mr Kahla could not have appreciated that the missing plank created a danger that warranted a warning or an instruction to Mr Abrahim on the Monday to avoid the hop-up. In any event, on his own evidence Mr Kahla should have ascertained the risk posed by the removal of Plank 3 and given a warning to Mr Abrahim not to use the hop-up on the Monday. 112Blue Star's breach of duty involved more than simply being held responsible for the negligence of a third party. Mr Kahla's failure to warn Mr Abrahim of the danger of which he (Mr Kahla) should have been aware (if he was not actually aware) constituted a breach of Blue Star's duty to use reasonable care to provide Mr Abrahim with a safe place of work and a safe system of work.

Apportionment 113As Parkview acknowledged in its submissions, a decision as to the contributions to a damages award to be made by concurrent tortfeasors is an evaluative exercise and is not lightly to be reviewed. As was said by the High Court in Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; 59 ALR 529, at 532, a finding on apportionment is not a finding on a question of principle or of fact or law: but of proportion, of balance and relative emphasis, and of weighing different considerations. It involves an individual choice or discretion, as to which there may well be differences of opinion by different minds... . (citing British Fame (Owners) v MacGregor (Owners) [1943] AC 197, at 201). Podrebersek was a case involving contributory negligence, but the same principles apply to claims for contribution among tortfeasors pursuant to s 5 of the Law Reform (Miscellaneous Provisions) Act 1946 ("1946 Act"): AV Jennings Construction Pty Ltd v Maumill (1956) 30 ALJR 100 (High Court); Idameneo (No 123) Pty Ltd v Gross [2012] NSWCA 423, at [111]-[115], per Hoeben JA (with whom McColl and Ward JJA agreed). Nonetheless, as this Court has recently stated, while there is a principle of restraint, there is no rule of restraint and there can be no inflexible approach to the review of an apportionment decision: Tarabay v Leite [2008] NSWCA 259, at [29]-[32], per Basten JA (with whom Allsop P and Bell JA agreed); Nominal Defendant v Green [2013] NSWCA 219; 64 MVR 354, at [48], per Basten JA (with whom McColl JA and Sackville AJA agreed). 114In the present case, the primary Judge dealt with apportionment on the basis that only Parkview and Erect Safe were liable to Mr Abrahim for the damage he suffered. For the reasons I have given, Blue Star was also liable to Mr Abrahim for the damage he suffered. His Honour did not consider the question of apportionment taking into account Blue Star's liability to Mr Abrahim. It is therefore necessary for this Court to reconsider the matter. 115In my view, the primary responsibility for the injuries sustained by Mr Abrahim rests with Parkview. It is true that the danger was initially created by the method used by Erect Safe to assemble the hop-ups on site. That technique created the possibility that a tradesperson would remove Plank 3 and thus render the hop-up unsafe. But Parkview was aware of the danger and set up a system of inspection (alongside warnings to contractors) that was intended to detect and rectify just the kind of unauthorised removal of a plank that occurred in the present case. As between Parkview and Erect Safe, Parkview accepted responsibility for implementing the system of inspection. Had Parkview not failed egregiously to implement its own system, the accident would have been averted. Erect Safe was entitled to expect that Parkview would carry out the daily inspections with a view to detecting obvious dangers such as the removal of Plank 3 from the hop-up. 116Erect Safe, although not primarily responsible, should contribute a significant proportion of the damages to which Mr Abrahim is entitled. Erect Safe's mode of assembly opened the way to a potentially disastrous accident. The risk could have been averted by employing a very simple safety mechanism. Erect Safe never gave an explanation as to why it did not do so, other than that it never had employed a back-up safety mechanism to deal with the unauthorised removal of Plank 3. 117For the reasons I have given, Blue Star's responsibility for the accident does not rest merely on the legal principle that it cannot escape responsibility for the negligence of others. Mr Kahla ought to have been aware of the danger, and accepted that he should have warned Mr Abrahim not to step on the hop-up without Plank 3, yet did not warn him. Blue Star's contribution should be less than that of each of Parkview and Erect Safe, but its contribution should not be insignificant. 118There is no mathematically precise answer to the question posed by s 5(2) of the 1946 Act, namely, the amount of the contribution from each of the parties liable for the damage that is just and equitable. In my opinion, justice will be done if responsibility is apportioned to Parkview as to one-half, Erect Safe as to one-third and Blue Star as to one-sixth.

Damages 119The key finding (at [82]) supporting the primary Judge's award of damages in respect of past and future economic loss was that there was: no reason to think that, by and large, he would not be able to continue working for [Blue Star] into the foreseeable future or, it might be, for some other employer, if not striking out on his own. It is difficult to see how this finding can be sustained. 120The primary Judge summarised (at [76]) Mr Abrahim's pre-accident work history. His Honour found that before the birth of Mr Abrahim's first child in December 2002, he "had drifted between casual employment as a painter", but that thereafter he had sought to work full-time. If Mr Abrahim did seek to work full-time, he was not very successful, since his Honour also found that, despite obtaining his painting licence in 2004 or 2005, he worked only "sporadically or intermittently" until about mid-2006. At that point, according to his Honour, Mr Abrahim "was able to cease reliance on unemployment benefits". 121The primary Judge did not refer to Mr Abrahim's tax returns, but those that were in evidence revealed very modest pre-accident earnings, a substantial proportion of which represented government benefits. Mr Abrahim's taxable income for the years for which taxation returns were in evidence appears from the following table: Year ending Taxable Income Government Benefits 30 June $ $ 2003 9,057 4,592 2005 11,046 10,140 2007 14,730 - It will be recalled that the accident occurred on 2 April 2007, so that the taxable income for the 2007 year presumably reflects earnings over an eight month period. 122The absence of Mr Abrahim's tax returns for the 2004 and 2006 years (if there were any) was not explained. There is no evidentiary basis for concluding that he earned more in those years than he did in the 2005 year. 123Mr Abrahim commenced employment with Blue Star on 5 March 2007, less than one month before the accident. Mr Kahla gave evidence that he had taken on Mr Abrahim because he had been recommended by a "mate", but that Mr Abrahim had proved to be a very good worker. However, Mr Kahla also said that his painters did not hold down permanent positions: "it depends how many jobs we have going". 124The primary Judge did not refer to s 13 of the CL Act and did not make the findings required by that section. Perhaps this is not entirely surprising, since none of the submissions to this Court referred to s 13, notwithstanding the challenge by the appellants and Blue Star to his Honour's award for future economic loss. 125On the evidence, no finding could properly be made that Mr Abrahim's most likely future circumstances, but for the accident, would have been full-time work, without significant interruptions (other than those resulting from the ordinary vicissitudes of life) until the age of 67 (s 13(1)). The primary Judge's finding as to Mr Abrahim's likely future earning capacity assumed that for every year until the age of 67 he would earn substantially more than he had ever earned previously, notwithstanding that there was no suggestion that his qualifications would be enhanced over that period or that he had any plans or demonstrated capacity to "strik[e] out on his own". 126In New South Wales, the standard allowance for the vicissitudes of life is fifteen per cent: cf De Sales v Ingrilli [2002] HCA 52; 212 CLR 338, at [99], per McHugh J; Vosebe Pty Ltd v Bakavgas [2009] NSWCA 117, at [151]-[152], per Basten JA. The standard allowance takes into account matters that would otherwise affect earning capacity such as sickness, accident, unemployment and industrial disputes, as well as positive considerations that might result in advancement and increased earnings: Wynn v NSW Insurance Ministerial Corporation [1995] HCA 53; 184 CLR 485, at 497, per Dawson, Toohey, Gaudron and Gummow JJ. The standard allowance may be adjusted up or down to take account of the plaintiff's particular circumstances: Wynn, at 497-498. 127As McHugh J observed in De Sales v Ingrilli, (at [100]), whatever figure is used for contingencies in a wrongful death claim, it would be a miracle if the amount awarded in a particular case got near the correct figure. Much the same thing can be said about the figure used for contingencies in the case of a relatively young plaintiff. But in the present case, once Mr Abrahim's pre-accident employment history is given proper weight, his most likely future circumstances but for the accident would involve significant periods of unemployment or less than full-time employment. The assumption made by the primary Judge that there would be no such interruptions to his employment (other than those reflected in the standard discount) cannot stand. 128An additional discount over and above the standard 15 per cent is required in order to cover the possibility (I would say likelihood) that Mr Abrahim would have experienced periods of unemployment or less than full-time employment beyond the risk faced by all tradespeople. In my opinion, the appropriate adjustment to an undiscounted award of damages for future economic loss is a discount of 30 per cent. This figure takes account of what I would regard, on the evidence, as a low prospect of Mr Abrahim increasing his earnings by working on his own account. 129Blue Star submitted that the award of damages for past economic loss should also be adjusted to take account of the likelihood that, had the accident not occurred, Mr Abrahim would not have been in full-time employment during the 242 weeks between the date of the accident and the date of the judgment. This submission should be accepted. Subject to the operation of s 151Z of the Workers Compensation Act, the award of $248,200 should be reduced by 30 per cent to $173,740. The award for past superannuation should also be reduced by 30 percent, to $19,111.

Conclusions 130The appeals by Parkview and Erect Safe against the findings of negligence and causation fail. However, their appeals succeed to the extent that a finding of negligence should be made against Blue Star and the damages awarded to Mr Abrahim should be reduced. Their appeals also succeed insofar as Blue Star is to be held liable to contribute one-sixth of Mr Abrahim's damages. 131As between Parkview and Erect Safe, the latter's appeal succeeds in reducing its liability to contribute to the award of damages to Mr Abrahim. However, Parkview's contribution to the damages award has been increased from 40 per cent to 50 per cent, notwithstanding the contribution now to be made by Blue Star.

Orders 132Since Blue Star has been found to be negligent and liable to contribute to Mr Abrahim's damages, it will be necessary to recalculate the damages for economic loss having regard to the relevant provisions of the WC Act and for the amount of the verdict and judgment against each of the three defendants to be amended accordingly. The parties should be directed to file agreed short minutes setting out the relevant calculations. The parties should also be directed to file short minutes of the orders to be made in lieu of the orders made by the primary Judge that are to be set aside. 133I propose the following orders: (1)The appeal by Parkview Constructions Pty Ltd ("Parkview") in CA 2012/400220 be allowed in part. (2)The appeal by Erect Safe Scaffolding (Australia) Pty Ltd ("Erect Safe") in CA 2012/386915 be allowed in part. (3)The cross-appeal by Mr Abrahim in CA 2012/400220 be allowed. (4)The cross-appeal by Blue Star Painting Solutions Pty Ltd be allowed in part. (5)Set aside Orders 1, 3, 4, 5, 6, 7 and 8 made by Adams J on 23 November 2012. (6)Set aside the order made by Adams J on 19 February 2013. (7)Direct the parties to file agreed short minutes of order on or before 31 January 2014 (a)specifying the amount of the verdict and judgment to be entered in favour of Mr Abrahim against each of Parkview, Erect Safe and Blue Star; (b)specifying the orders that should be made in lieu of the orders set aside by Order 5 above; (c)specifying the costs orders that should be made. (8)If the parties cannot agree on the matters identified in Order 7(a) and (b): (a)Parkview, Erect Safe and Blue Star are to file and serve their proposed short minutes of orders and brief written submissions in support on or before 31 January 2014; (b)Mr Abrahim is to file and serve his proposed short minutes of order and brief submissions in support on or before 14 February 2014.

Costs 134The parties have not had an opportunity to make submissions to the Court on costs in view of the conclusions reached in the judgment. Nonetheless, it may be useful for me to indicate a preliminary view as to the appropriate costs orders. Any party wishing to argue for different orders will have the opportunity to do so in accordance with the timetable already set out. If there is no dispute as to the costs orders, the agreed short minutes can incorporate the appropriate orders.

Parkview's Appeal 135Parkview's appeal against the judgment in favour of Mr Abrahim has failed, except to the extent that Mr Abrahim's damages for economic loss have been reduced. In my view, having regard to the fact that all three of the original defendants challenged the award for economic loss, Parkview should pay eighty per cent of Mr Abrahim's costs of the appeal. 136Parkview's appeal against Erect Safe has failed, in that as between them Parkview has been found primarily responsible for the injuries to Mr Abrahim. Parkview should therefore pay Erect Safe's costs of Parkview's appeal. 137Parkview has succeeded in establishing that Blue Star was negligent and that it is liable to contribute to the damages awarded to Mr Abrahim, although not to the extent that Parkview sought. Given Parkview's success on this aspect of its appeal, Blue Star should pay Parkview's costs of its appeal, insofar as the costs relate to Parkview's appeal against the decision in favour of Blue Star.

Erect Safe's Appeal 138Erect Safe's position in relation to Mr Abrahim is the same as that of Parkview. Erect Safe should be ordered to pay eighty per cent of Mr Abrahim's costs of the appeal. 139Erect Safe's appeal against Parkview on the question of contribution has in substance succeeded. Parkview should pay Erect Safe's costs of its appeal, insofar as those costs relate to the appeal on the question of apportionment. 140Blue Star should pay Erect Safe's costs of its appeal insofar as the costs relate to Erect Safe's appeal against the decision in favour of Blue Star.

Mr Abrahim's Cross-Appeal 141Mr Abrahim's cross-appeal was essentially defensive, and was intended to take account of the possibility that Parkview and Erect Safe would succeed in their appeals against Blue Star. Nonetheless, Blue Star should pay Mr Abrahim's costs of his cross-appeal.

Blue Star's Cross-Appeal 142Blue Star's cross-appeal against Mr Abrahim has succeeded in that his damages for economic loss have been reduced. Mr Abrahim should therefore pay Blue Star's costs of its cross-appeal.

Costs at First Instance 143I see no reason to interfere with Order 2 made by the primary Judge, whereby Parkview and Erect Safe were ordered to pay Mr Abrahim's costs of the proceedings. 144Since Mr Abrahim has succeeded in establishing that Blue Star is liable to him, Blue Star should also be ordered to pay Mr Abrahim's costs of the proceedings. 145Order 5 made by the primary Judge gave judgment for Blue Star against Parkview and Erect Safe on Blue Star's cross-claim. Order 6 ordered Erect Safe and Parkview to pay Blue Star's costs of its cross-claim. Order 7 gave judgment for Blue Star on Erect Safe's cross-claim and ordered Erect Safe to pay Blue Star's costs of the cross-claim. Order 8 gave judgment for Blue Star on Parkview's cross-claim and ordered Parkview to pay Blue Star's costs of the cross-claim. 146In the result the three defendants to the proceedings at first instance have had some success and some failures in their cross-claims against each other. Accordingly, I think it appropriate that there should be no order as to costs in respect of any of the cross-claims.

Photograph A Photograph B 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: 07 January 2014