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[2003] TASSC 59
Supreme Court of Tasmania
2003-07-04
Evans J
Original judgment source is linked above.
CITATION: South v James Loughran & Sons Pty Ltd & Ors [2003] TASSC 59
HEARING DATE: 5 - 7, 11 - 14, 17 - 21, 24 - 27 February 2003
Torts - Negligence - Apportionment of responsibility and damages - Apportionment in particular situations and cases - Defendants' failure to provide a safe place of work - Contributory negligence of worker - Worker aware of gap in walkway.
Wrongs Act 1954 (Tas), s 4(1).
Liftronic Pty Ltd v Unver [2001] HCA 2; Podrebersek v Australian Iron and Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492; Vail v Formato 10 MVR 12, followed.
Statutes - Acts of Parliament - Enforcement of statutory rights and remedies - Breach of statutory duty - General - Whether there can be more than one occupier of a work place - Meaning of "floor in a workplace".
Industrial Safety, Health and Welfare Act 1977 (Tas) ss4, 29.
Industrial Safety, Health and Welfare (Administrative and General) Regulations 1979 (Tas), regs2(1), 88(2).
Rice v Henley [1914] HCA 75; (1914) 19 CLR 19; Sullivan v Hall Russell & Co Ltd 1964 SLT 142; Godden v Metropolitan Meat Industry Board [1972] 2 NSWLR 103, referred to.
Damages - Particular awards of general damages - Tasmania - Back, head, brain, eye and arm injuries - Electrician aged 38 - Gross award $617,438 including $70,000 for general damages.
Judgment Number: [2003] TASSC 59
NELSON EDWARD SOUTH v JAMES LOUGHRAN AND SONS PTY LTD,
1 During the afternoon of Saturday, 21 January 1995, the plaintiff and others were installing electric cables along an elevated chipwood conveyor being constructed south of Burnie at Hampshire. The plaintiff suffered significant injuries when he fell from the conveyor at a point where it was about 23 metres above the ground. He claims damages for his injuries from: the first named defendant, James Loughran and Sons Pty Ltd ("Loughrans"), the company for whom the plaintiff was working at the time of his fall; the second named defendant, Gunns Forest Products Pty Ltd, then known as North Forest Products Ltd ("Norths"), the entity for whom the elevated conveyor was being constructed; and the third named defendant, The Engineering Company Pty Ltd ("TEC"), the company engaged to carry out the engineering construction work being performed on the site.
2 The plaintiff is 38 years of age, he was born on 7 December 1964. After completing an apprenticeship in 1984, the plaintiff qualified as what is now termed an A-grade electrical technician. For about two years thereafter he worked in the employment of other electricians. Although only a young man, he readily took on the responsibility of performing the electrical work in relation to some large projects. For two seasons, in about 1986, he worked with Dover Enterprises, now Devonport Electrical Services, on the installation of electrical services at the camping ground at Cradle Mountain. This was demanding work and the plaintiff was put in charge of the site; this required him to supervise an apprentice and, on occasions, other tradesmen. He also worked on the redevelopment of the West Park Primary School and upgrading and redeveloping the grading line at Vecon, then a substantial onion supplier.
3 In late 1987, he went into business on his own account. The first major job he obtained was from Multi-Construction Services, the builder engaged by P & O to undertake a major redevelopment of its Cradle Mountain Lodge. The project occupied about 80 per cent of the plaintiff's working time for the next five or six years. From an electrician's standpoint, the project was under-designed; in consequence the plaintiff was called upon to play a significant role in designing the work he performed. He was also engaged by the State department responsible for Parks and Wildlife to perform electrical work on the Cradle Mountain Visitors' Centre, and further work on an extension to the camping ground at Cradle Mountain. In order to handle the workload, the plaintiff employed another electrician.
4 In 1991, Multi-Construction Services engaged the plaintiff to perform the electrical work on the construction of the Freycinet Lodge. Whilst working on large projects such as these, in order to protect his business, the plaintiff continued to take on and perform electrical work for domestic clients. As the major projects came to an end, the plaintiff obtained work with two businesses, Sasafras Stock Feed and Perfector Produce, with whom he contracted to work at an hourly rate. The work involved the design and implementation of the electrical services required by these businesses. The plaintiff described this sort of arrangement as labour-hire. He was attracted to it because of the consistency of the work and the substantial reduction in the overheads which he had to carry; the work did not require him to provide materials. Consistent with the plaintiff's interest in this sort of arrangement, he responded to an advertisement for an electrician placed in late 1993 by the first defendant, Loughrans. In early 1994, the plaintiff began what was initially intended to be a flexible working arrangement with Loughrans at an hourly rate of $25. Shortly after the plaintiff commenced working with Loughrans, he agreed to a request that he, in effect, work full time for Loughrans and thereafter he attended Loughrans' Wivenhoe office daily, arriving before 8am and not leaving until after 5pm. On the business card which Loughrans provided to the plaintiff, his position was designated as that of an estimator. Within a short time of the plaintiff starting with Loughrans, he began assisting with the preparation of estimates for the purposes of quotes for substantial jobs. The then manager of Loughrans was Michael Rutherford, and the second-in-charge was Gregg Sharman. The plaintiff performed work subject to the direction of these colleagues. At the time, Loughrans also employed about 10 to 15 electricians who were working in the field, that is, away from the Wivenhoe office. In late 1994, the plaintiff was heavily involved in the preparation of a tender to the second named defendant, Norths, for the construction of a mobile woodchip loader to be used for loading ships. The preparation of the tender was risky and difficult, as the job was substantial, but under-designed. Upon the successful completion of that tender, Mr Rutherford requested the plaintiff to take over the preparation of Loughrans' tender referable to a further Norths' project, the construction of a woodchip mill at Hampshire. This was a substantial and well designed project. Loughrans' tender, which exceeded $1,000,000, was accepted and thereafter the plaintiff became involved in procuring the materials Loughrans required to complete the project.
The lead up to the cable pull at the Hampshire Mill
5 In about late October or early November 1994, Loughrans began work at the Hampshire site. Doug Couzens was engaged as Loughrans' site manager. The project included the construction of a chipwood conveyor which, for relevant purposes, was comprised of two elevated conveyors. The first conveyor, C14, ran from a motor control centre to a substantial height and then dropped vertically to the commencement of the second conveyor, C20, which ran at an approximate right angle from the end of C14 and rose from ground level to a height of in excess of 23 metres over a length of about 150 metres (in the head contract the dimensions of the belt conveyor installed on C20 are specified as 500 feet x 48 inches and the conveyor length is specified at 152.4 metres).
6 A significant aspect of Loughrans' involvement in the Hampshire Mill project was the installation of electrical cables along the entire length of the conveyor from the motor control centre to the upper end of C20. This task was to begin on Saturday, 21 January 1995. About a week prior to that date, Mr Rutherford, Mr Couzens and the plaintiff met at the Hampshire site to plan how to carry out the work. The plaintiff was a participant in this meeting as he, having been the estimator for the project, would have considered how to perform the cable pull. Mr Rutherford said that the plaintiff was given ownership of the performance of the task. I am satisfied, on the evidence of Mr Rutherford and Mr Couzens, that at the meeting, in summary, it was agreed that: the cables would be pulled over the upper end of C20 down that conveyor to the base of C14 and from there to the motor control centre; three teams of workers would be needed, one led by Mr Couzens at the cable drums near the foot of the upper end of C20, another led by Gregg Sharman at the motor control centre and a further team led by the plaintiff on the conveyor. Following that meeting, there were further telephone meetings between Mr Rutherford, Mr Couzens and the plaintiff to tidy up the details of the work.
7 In order to carry out the cable pull, it was necessary for the team led by the plaintiff to access the C20 conveyor. The third named defendant, TEC, was responsible for the construction of that conveyor. Loughrans was aware that TEC had further work to perform on that conveyor and that the temporary means of access available for that conveyor, a half extension ladder, was unsatisfactory and barred by means of a flag rope tied at or near the entrance to the walkway. The minutes of a contractors' site meeting on Thursday, 19 January 1995, at which Robert Williamson, TEC's site supervisor, and Doug Couzens were present, record that on the next day TEC would attend to providing Loughrans with access to the walkway. On that next day, the Friday, Mr Williamson told Mr Rutherford that the access has been installed.
8 During the afternoon of Friday 20 January 1995, Mr David Davis, an engineer whose company had contracted with Norths to prepare a list of spares for the Hampshire Mill, visited the site in order to familiarise himself with the mill. The arrangements for Mr Davis' visit had been made with Greg Stanford, a mechanical engineer employed by Norths. He was one of the employees of Norths who were involved in the supervision of the construction of the mill. He regularly attended the site and on the day in question, Mr Davis travelled to and from the site with Mr Stanford. One of the last things Mr Davis did at the site was walk to the upper end of the C20 conveyor to inspect a drive motor and other items. Mr Davis accessed the C20 walkway via the stairs that had, that day, been installed by TEC. His access to the walkway was unimpeded, there was nothing to warn him of any danger associated with his use of the walkway. As Mr Davis walked to the upper end of the conveyor, he was shocked to find that a rectangular section of walkway grating was missing. I find the missing section was about 20 metres from the upper end of the walkway at a point where the walkway was approximately 23 metres above the ground. No precise evidence was given of the dimensions of the missing grating. I have not located a reference to the width of the C20 walkway in the head contract. The width specified in that contract for a catwalk and a walkway adjacent to the two belt conveyors is 30 inches. I find that the dimensions of the missing grating were about 1.2 metres long and .75 metres wide. Mr Davis navigated the gap in the walkway by placing his feet on the angle iron supports for the missing section and by holding on to hand supports on either side of the walkway. Upon returning to the ground, Mr Davis looked around for a means of warning others of the hazard presented by the absent section of walkway. He found some flag rope in the vicinity of the stairs leading to the walkway which he wound across the stairs so as to create a spider web effect and tied it off. Shortly after Mr Davis had attended to this, Mr Stanford, who had been engaged elsewhere on the site, came to drive Mr Davis back to Burnie. Mr Davis told Mr Stanford of the gap in the walkway and of the flag rope he had tied across the stairs as a temporary warning barrier. As they drove from the site, Mr Stanford stopped at a site office and went inside. Mr Stanford did not give evidence. Whilst it is not unreasonable to infer that Mr Stanford went into the site office with the intention of dealing with the gap in the walkway, in the absence of any evidence about what then occurred, I am unable to reach any conclusion on the balance of probabilities about what steps, if any, he took to ensure that the danger presented by the gap was dealt with. If he in fact gave appropriate directions to someone about promptly dealing with the problem, they were not complied with. My uncertainty about what Mr Stanford did or did not do, upon being informed by Mr Davis of the gap in the walkway, is compounded by the following answer Mr Stanford provided to an interrogatory delivered by the plaintiff to the second defendant:
Did the Second Named Defendant know that the hole existed before the Plaintiff went onto the walkway on 21 January, 1995? If yes, how did the Second Named Defendant come to know of it and when did the Second Named Defendant come to know of it?
A On 20 January 1995, David Davis informed me that grating was missing however I was unaware of the nature of the missing grating or that it constituted a hole."
This answer suggests that Mr Stanford was only told that a grating was missing and that he was unaware that it was walkway grating, the absence of which constituted a hole. It might be inferred from this answer that Mr Stanford did nothing in response to the information provided to him by Mr Davis; which information I find to be that there was a gap in the walkway caused by a missing section of walkway, and that Mr Davis had tied a flag rope across the stairs as a temporary warning barrier.
9 On the morning of Saturday, 21 January 1995, the plaintiff, together with a number of Loughrans workers, arrived at the Hampshire Mill site at about 7am. Due to inclement weather, the actual cable pull did not start until after lunch. The evidence of precisely who worked on the walkway of the C20 conveyor on 21 January 1995 is somewhat uncertain. This is perhaps not surprising, as the group of workers brought together at the site on that day did not usually work together and some changes occurred in the course of the day in the composition of the group. I find that the following workers, in addition to the plaintiff, were in that group.
10 Michael Meldrum. In January 1995, he was a 30 year old electrician working as the site supervisor on a Loughrans project at Marist College. He left the mill before the plaintiff's fall. He gave evidence.
11 Geoff Hawkins. In January 1995, Mr Hawkins was managing a Loughrans project at Elphinstone's. Mr Hawkins and Mr Meldrum travelled to and from the mill together on the day of the accident, and as they left the site after the first cable pull, they spoke to Mr Rutherford. I infer, that Mr Hawkins, like Mr Meldrum, was part of the ad hoc crew who worked on the conveyor and left before the plaintiff's fall. No evidence was given by Geoff Hawkins and no statement taken from him was put into evidence.
12 Nelson Hill. Roger Nutting's recall is that this man was part of the work crew. I accept this evidence. It was not contradicted by the evidence of any other witnesses. The plaintiff gave evidence that a person of this name worked for the plaintiff as an apprentice electrician in about 1990 and that at the time of the fall, Nelson Hill had been working on the Mainland for several years. The plaintiff was not asked whether Mr Hill was a member of the crew working on the conveyor. Nelson Hill did not give evidence and no statement taken from Nelson Hill was put into evidence.
13 Peter Booth. In January 1995, Mr Booth was 29 years of age, and had been employed by Loughrans as a trades assistant for about 10 weeks, during which period he had worked at the Hampshire Mill. Peter Booth gave evidence.
14 Ricky Bowden. In January 1995, Mr Bowden, then aged 27, was in the first year of his apprenticeship as an electrician with Loughrans. He was working on a project at Marist College under the supervision of Michael Meldrum. Mr Bowden gave evidence.
15 Matthew Ling. In January 1995, Mr Ling, then aged 19, had been employed by Loughrans as a trades assistant for about nine months. Mr Ling gave evidence.
16 Roger Nutting. In January 1995, Mr Nutting, then aged 42, was Loughrans' leading hand at the Hampshire Mill.. Mr Nutting gave evidence.
17 Gregg Sharman. As already mentioned, Mr Sharman was second in charge at Loughrans in January 1995, he was then 38 years of age. He gave evidence.
18 David Lawson. Mr Lawson was not called as a witness; however, the following statement from him was put into evidence:
"DEPARTMENT OF STATE DEVELOPMENT AND RESOURCES TASMANIA
STATES - that on Saturday 21st January 1995 I was working at the log intake end of the Chip mill at Hampshire. Some time in the afternoon Greg Sharman approached me and gave me an instruction to go down to the bottom conveyor (C20) to help pull cable.
As I approached the conveyor I could see people on the walkway and proceeded on my way up. On the way up the walkway I noticed some rollers on the walkway and nearer the top there was a hole. I stepped over the hole to join the group, just prior to this a voice warned about the hole, other than the warning there was no other discussion about the hole.
Once we started pulling on the rope I slowly made my way down the walkway stepping over the hole and continuing down about three quarters of the way down to an area free of rollers but had a level floor section upon which I stood until the cable was completely pulled. I then made my way back up to the top of the conveyor. At the top of the conveyor I waited until the rest of the group was there, and because I knew what had to happen I went to the end of the conveyor and moved the end of the cable from the conveyor to the tray. We then lowered the rope to the ground for the second cable.
At this stage I had no further involvement with the first cable. The next major point was hearing what I thought was a helmet hitting the concrete slab and then I heard a comment 'someone's gone through the hole'.
19 Glenn Cook. The following statement from Mr Cook, who is now deceased, was put into evidence:
"DEPARTMENT OF STATE DEVELOPMENT AND RESOURCES TASMANIA
STATES - that on Saturday 21st January 1995 I was working at the log intake at the Hampshire Chip Mill. At about 4.00 pm Greg Sharman asked me to go over to Conveyor C20 to pull some cables.
As I approached the conveyor I could see a number of people at the top of the conveyor and so I went up the conveyor via the walkway. As I went up the conveyor I noticed a hole had been covered with a board and had been roped down, this cover was about a quarter of the way up the conveyor. Further up the conveyor I came across a hole which I stepped over. After stepping over the hole I approached the group up there. There was no discussion about the hole in the walkway.
There was a discussion on what had to be done with Nelson appearing to be in charge and saying what needed to be done. From there on we spread out to pull the cable and eventually I went down past the hole. The only instructions given were when to start and stop pulling.
After this cable had been pulled Nelson said 'We should get the other cable up for tomorrow' and so we all went back up to the top of the conveyor. Once up there someone suggested it would be better if the cable was laid in the tray as it would make it easier to pull the second cable. I don't remember any instructions given but we started to transfer the cable from the conveyor rollers to the cable tray.
After I had lifted the cable over to the tray I then stepped under the cable and went down, stepped over the hole and the next thing I remember is hearing a thud. I thought someone had dropped something. The person down from me said 'Oh God' and I turned and was looking around and after a second or two I saw someone lying on the ground.
20 Michael Meldrum said that on the day of the cable pull, he and the plaintiff walked up the C20 conveyor in order to check where the cable was to be pulled and assess the job. In the course of their walk, the plaintiff showed Mr Meldrum what the plaintiff wanted him to do and the plaintiff discussed with Mr Meldrum the number of workers needed on the walkway to carry out the task. Mr Meldrum's belief is that this was the first occasion on which he or the plaintiff had accessed the walkway. In his evidence-in-chief, Mr Meldrum said that as they walked up the walkway, he noticed a gap in the walkway grating which had been covered by a piece of marine ply and further up the walkway came upon a gap where a section of the walkway grating was missing. Mr Meldrum said that he and the plaintiff crossed the gap and after reconnoitring the length of the walkway, they returned to the ground. Under cross-examination, Mr Meldrum said that he had no clear recall of seeing the gap in the walkway. A statement Mr Meldrum provided to a loss assessor on 9 February 1995 satisfies me that on the day of the accident, Mr Meldrum in fact saw the gap in the walkway and that he and plaintiff traversed it. Mr Meldrum gave evidence that when he and the plaintiff returned to the ground, they did not mention the gap to anyone or do anything about it. Subsequent to the inspection Mr Meldrum and the plaintiff carried out, they returned to the walkway with a group of workers to carry out the cable pull. Initially a winch was used in an endeavour to pull the cable, but that method was abandoned in favour of the use of hands-on force. Mr Meldrum said that in the course of the work, the plaintiff was giving directions and liaising with the other two teams of workers via a walkie-talkie. Mr Meldrum estimated that in the course of his involvement in the work, he crossed the gap in the walkway about 14 times. Under cross-examination, Mr Meldrum: agreed that as between he and the plaintiff, when on the walkway, the plaintiff was the leader; resiled from evidence he had given about seeing flag rope attached to the side of the stairs leading to the walkway; and gave evidence which suggested that much of his recall about the gap in the walkway was reconstruction. Whilst Mr Meldrum was an unimpressive witness, I find that he and the plaintiff, in effect, reconnoitred the cable pull, discussed the number of workers needed to perform the task, and discovered the gap in the walkway. This evidence accords with what is likely to have occurred and is not contradicted by any other evidence.
21 Peter Booth impressed me as a reliable witness. He said that after the weather had cleared on the day of the cable pull, he and a group of Loughrans workers walked up the conveyor to see how they were to do the job. He is pretty sure that as the group walked up the stairs leading to the walkway, they had to step over a barrier near the bottom of the stairs which he described as being a tape which was orange in colour. The barrier was moved to one side when they started work, but he did not see who moved it. The plaintiff led the discussions on how the job was to be performed. There was a gap in the walkway that all of the workers in the group, about six, crossed; there was some discussion in the group about the gap not being good and about covering it with a piece of plywood. Subsequent to this discussion and after the group had returned to the ground, Mr Booth approached the plaintiff and told him that they should not go back up the walkway as it was too dangerous, someone would fall, and they had to get the hole covered. The plaintiff replied that there were no engineers there to cover the hole and as to Mr Booth's suggestion that they, the members of Loughrans team, should cover the hole, the plaintiff responded to the effect that it was the engineers' job, it was not Loughrans' responsibility and they, the group, should get up there and get the job done. As the group returned to the walkway to commence the work, the plaintiff reminded them of the hole and told them to watch each other's backs.
22 The evidence establishes that at the time of the cable pull, the rollers to which the conveyor belt was to be fitted had been installed, but the belt itself had not been installed. These rollers were used to facilitate the cable pull. Prior to the plaintiff's fall, one cable had been pulled the length of the conveyors. After this, some members of the group of workers then on the C20 conveyor began preliminary work on pulling a second cable which was on a drum immediately below the upper end of the conveyor. The second cable was secured to a rope so as to enable it to be pulled up and over the end of that conveyor. At some point it was realised that before the second cable pull was undertaken, it was necessary to free up the rollers by transferring the first cable from the rollers to a cable tray on the other side of the walkway. To carry out this transfer, the team worked in a line along the walkway down from its upper end. The transfer began with the worker nearest the upper end of the walkway, at the head of the line, lifting the cable from the rollers, which were on his right hand side as he faced the upper end of the walkway, over his head to the cable tray on the left hand side of the walkway. That worker then moved down the walkway to the end of the line of workers. The same exercise was undertaken by each worker in turn upon getting to the head of the line. In the course of this procedure, the plaintiff, having been at the head of the line, moved down the line past the then last worker in the line, Ricky Bowden; upon the plaintiff passing about 1 metre beyond Mr Bowden, the plaintiff fell through the gap in the walkway.
23 Mr Booth's evidence is that at the time of the plaintiff's fall, Mr Booth and some other workers had begun to pull the second cable, the end of which he was holding just over the upper end of the conveyor, and that he, Mr Booth, was not directly participating in the cable transfer. Mr Booth said that whilst he was holding the second cable, he saw the plaintiff "go charging off down the walkway" (a characterisation which I find to be an overstatement) and the next thing Mr Booth heard was sounds connected to the plaintiff's fall.
24 On the basis of the photographic evidence, I am not satisfied that the second cable had been pulled as far as Mr Booth recalls when the plaintiff fell. I am, however, satisfied from evidence which includes the photographic evidence, that at the time of the plaintiff's fall, the second cable had been pulled part of the way towards the upper end of the conveyor. Ricky Bowden said that after completion of the first cable pull, he left the conveyor for about 10 to 15 minutes in order to get some gear from a mate's car and that upon his return to the conveyor, the second cable was up at the top of the conveyor and they were transferring the first cable from the rollers to the cable tray. I am also satisfied that at that time of the plaintiff's fall, the rope attached to the second cable was being held by Mr Booth and he was not a participant in the transfer of the first cable. My findings about what Mr Booth was doing at the time of the plaintiff's fall are of no direct relevance to the circumstances of that occurrence. The findings are, however, relative to the reliability of Mr Booth's evidence. Counsel for the plaintiff submits that I should not accept Mr Booth's evidence, as his recall as to what he was doing at the time of the plaintiff's fall was wrong. I reject this submission. The minor error in Mr Booth's recall about the height to which the second cable had been pulled is of no consequence and I do not consider that any other matters raised in criticism of Mr Booth's evidence warrant my rejecting or discounting the reliability of his evidence.
25 Ricky Bowden said that in January 1995 he was working on a job at Marist College under the supervision of Michael Meldrum. At the request of his employer, Mr Bowden went to work at the Hampshire Mill on Saturday, 21 January 1995. Early in the afternoon on that day, Mr Bowden took some insulation tape to the group of Loughrans workers on the C20 conveyor and thereafter he stayed to help them. As he mounted the stairs to the conveyor walkway, he noticed some flag rope hanging off to the side of the handrail. He cannot say whether the rope was tied at both ends. As he went up the walkway, his attention was drawn to a gap in the walkway. He was able to cautiously step over the gap and was not really bothered by it. General comments were made by the men about the hole being a bit dangerous and when workers went near it, other workers warned them to look out.
26 Mr Booth said that the plaintiff, who Mr Booth had not previously met, seemed to be running what was occurring on the conveyor; Mr Booth described the plaintiff as the boss. Mr Booth worked as directed by the plaintiff. Prior to the plaintiff's fall, Mr Booth estimates that he had been on the walkway for several hours and had crossed the gap in the walkway about six times.
27 Matthew Ling said he had worked at the Hampshire Mill site for about two or three months prior to the plaintiff's fall. He assisted with the cable pull. He is not sure how many times he went up the walkway on the day of the pull. It must have been at least two occasions, as he assisted in pulling the first cable down C20 and over the next conveyor, C14, and would have had to go back up C20 in order to assist with the second cable pull and the transfer of the first cable. His recall is that there was flag rope across the stairs leading to the C20 walkway which was tied on to the handrail; it was necessary to either step over the rope or get under in order to access the walkway. As he moved up the walkway, he noticed a piece of plywood had been placed over one gap in the walkway (statement of 7 February 1995) and further on he noticed a gap in the walkway which was not covered. He said that he did not consider the gap to be a really big risk. He made a comment to Roger Nutting about the need to be careful when near the gap. In the course of giving his evidence, Mr Ling acknowledged that Roger Nutting was in charge of the cable runs generally, but said that Mr Nutting did not take charge of the work carried out on the conveyor; the plaintiff took charge of this work and as to this work, the plaintiff was the boss. More generally, Mr Ling described the plaintiff as a hard worker and a busy bee. Mr Ling said that after the first cable had been pulled the length of the conveyor, the group went back to the upper end of C20 to pull the second cable, but had to change tack and transfer the first cable from the rollers to the cable tray before getting on with the second cable pull. Mr Ling said that as this was occurring, Doug Couzens, who was at the base of the conveyor near the rolls of cable, called to the group to get a move on; Mr Ling called back explaining the need for the cable transfer. Mr Ling said that the plaintiff was in the group as they were performing the cable transfer and during the performance of this exercise the plaintiff fell.
28 Roger Nutting was employed by Loughrans at the Hampshire Mill site from about October 1994. He was an experienced electrician, having obtained his qualifications in 1970. He assumed some of the administrative responsibilities at the site, as well as performing work as an electrician. Prior to the occasion of the plaintiff's fall, Mr Nutting had been appointed Loughrans' leading hand at the site. As to the cable pull itself, he said he was not running that exercise. He confirmed the correctness of a statement he had previously made with respect to the cable pull that: the plaintiff was giving the main directions; when the plaintiff came to the Hampshire Mill, he had a lot of input with management; if anyone was giving instructions, it was the plaintiff; and he was not sure if the plaintiff had authority over him, it never came to that, the plaintiff had a fair bit of pull within the company. Mr Nutting said that for someone to have walked over the conveyor before preparatory work on the cable pull began would have been standard practice, but he did not know whether this had occurred; if it had occurred, he was not involved. He had no recall of seeing a flag rope or the like in the vicinity of the stairs at the beginning of the walkway. The first time he walked up the C20 conveyor walkway on the day of the plaintiff's accident, other workers were already up there. He vividly remembered seeing that a section of grid mesh was missing from the walkway, and commenting on the need to be aware of it at all times. Everyone was aware of the gap and they were all constantly reminding one another of it and the need to be careful. He crossed the gap about four times and did so with a fairly lengthy stride whilst holding hand supports. The gap was not much of a problem to him and he did not feel threatened by it. After completing the first cable pull and returning to the upper end of C20 and commencing the second cable pull, it was realised that the first cable needed to be transferred from the rollers to the cable tray. He participated in the cable transfer during which the plaintiff fell.
29 In January 1995, Gregg Sharman's position with Loughrans was titled general works foreman; in practice, he was second in charge to Mr Rutherford. Whilst aware of Loughrans' tender for and involvement in the electrical work at the Hampshire Mill, Mr Sharman had little involvement in this aspect of Loughrans' activities. Mr Rutherford having taken on the role of project manager at the Mill, Mr Sharman assumed a greater role in managing Loughrans' other activities. The plaintiff or Mr Rutherford told Mr Sharman of the cable pull to be carried out at the Mill and asked him to participate. He was also asked to arrange for the provision of some items of equipment for the work, this included arranging for a suitable winch. On the day of the cable pull, Mr Sharman and Matthew Ling initially worked in the motor control centre setting up that winch so that it could be used to pull the cable. For the purposes of the cable pull, Mr Sharman, Mr Couzens, who was with the cable rolls at the foot of the upper end of C20, and the plaintiff, each had a two-way radio. The plan was that when the plaintiff had his crew ready at various points along the conveyor, he would tell Mr Sharman to start the winch in order to pull in the cable. This plan was followed to the point that the first cable was on the rollers of C20, at which point Mr Sharman received advice from the plaintiff, via the two-way radio, to the effect that it was fairly easy to man-handle the cable down the rollers and the use of the winch was to be abandoned. At the plaintiff's request, Mr Sharman left the motor control centre to assist in man-handling the cable over conveyor C14 to the motor control centre. Again at the plaintiff's request, Mr Sharman went up C20 to assist with the transfer of the first cable from the rollers to the cable tray.
30 In a written statement made on 7 February 1995, Mr Sharman said that before he went up C20, he was handed a cable sock which he passed on to Mr Rutherford. Whilst he did not mention this in the course of his oral evidence, I am satisfied that this occurred. That Mr Sharman did so is consistent with his evidence that the cable transfer had begun by the time he got to the top of C20. A cable sock had been used to connect the first cable to the rope which pulled it and would have been needed for the same purpose in relation to the second cable. As Mr Sharman, for the first time, made his way up the walkway on conveyor C20, he came upon the gap in that walkway, and was alarmed. In the written statement referred to, he said that when he got to the workers, he said words to the effect that they should not be up there, but received no response. In the course of his oral evidence, Mr Sharman said that this comment was directed to the plaintiff. As no specific mention of this was made in Mr Sharman's written statement, I am not prepared to accept that this is so. Upon Mr Sharman's arrival at the end of the walkway, some of the men were already working their way down the walkway transferring the first cable from the rollers to the cable tray. In the course of this process, the plaintiff moved down the walkway past Mr Sharman and fell through the hole. When giving his evidence, Mr Sharman acknowledged that the hole was very dangerous and that, with the benefit of hindsight, he should have insisted on the men stopping work; he explained his failure to do so on the non-response he received to his initial, and only, expression of concern about the hole and the absence of any pause between his crossing the hole and his involvement in the cable transfer. He estimated the time lapse between him crossing the hole and the occurrence of the fall at "probably less than 5 minutes". On the basis of his oral description of what occurred and the written statement to which I have referred, I am satisfied that the time lapse was considerably less than five minutes.
31 When cross-examined, Mr Sharman agreed that he had the capacity and power to give directions to Loughrans workers at the Hampshire Mill: but in substance said he was reluctant to do so as it was his first day at that site; there were others appointed to run the job at that site; and he was only there as an extra hand. He was adamant that throughout the day the plaintiff led the cable pull operation.
32 Doug Couzens, Loughrans' site manager at the Hampshire Mill, was present on the day of the plaintiff's fall. He and another worker, Alan Burnell, were with the cable drums near the base of the upper end of C20. They connected the cables to a rope lowered over the upper end of C20 and monitored the unreeling of the cables.
33 Mr Couzens was aware that it had been necessary to request TEC to provide access to the C20 walkway to enable the cable pull to proceed. At the time of the cable pull, he was also aware that TEC had further work to perform on the C20 conveyor, such as the installation of rollers. He was not aware that a section of the walkway was missing until after the plaintiff's fall. He did not carry out a safety inspection of the walkway before the cable pull commenced. He had no concerns about the plaintiff's competence and relied on the plaintiff to deal with any safety concerns on the conveyor. Mr Couzens said he relied on everyone on the site to report a dangerous situation and agreed with a question put to him by counsel for Norths to the effect that Norths had made it clear that everyone on the site was responsible for their own safety and the safety of their workmates.
34 Michael Rutherford, Loughrans manager, was at the Hampshire Mill on the day of the cable pull. From early January 1995, he had attended the site on a full time basis. He did not play an active role in the first cable pull, but became involved in the second cable pull when Doug Couzens requested Mr Rutherford, by means of his two-way radio, to assist with unreeling the second cable drum. Mr Rutherford joined Mr Couzens and Mr Burnell at the cable drums. As they were securing the second cable to a rope lowered by the plaintiff's crew, the crew directed some friendly banter to Mr Rutherford's group, encouraging them to hurry up. Mr Rutherford heard the plaintiff's fall and he, Mr Couzens and Mr Burnell, were the first to get to the plaintiff.
35 Mr Rutherford had not previously been aware that any section of the conveyor walkway was missing. When Robert Williamson, TEC site manager, told Mr Rutherford that access to C20 had been installed, Mr Rutherford assumed that this meant that it was appropriate to use the walkway. Had it been otherwise (as it was), he would have expected Mr Williamson to have said so. Mr Rutherford had not initiated any steps to check the safety of the walkway before the cable pull began. After the plaintiff's fall, Mr Rutherford inspected the walkway from ground level and said the gap left by the missing section of walkway could be seen, but was very difficult to see.
36 The thrust of the evidence, which I accept, is that generally the project was well designed and managed and that significant attention was given to safety. Mr Rutherford said that safety on the site was paramount; it was a very safe site and one of the better sites he had worked on. It was emphasised that each contractor on the site was responsible for safety.
37 The mill was being constructed by Fulghum Industries Inc ("Fulghums"), subject to a head contract with Norths. Fulghums in turn had subcontracted the construction of facets of the work to others, such as the electrical work to Loughrans, and the construction of the conveyor to TEC. As principal, Norths maintained a regular presence on site. Gary Ingram of Guttridge Haskins and Davey Pty Ltd, was engaged by Norths to supervise the interface between the various contractors. He was regularly on site and attended and minuted all principals' site meetings which preceded the date of the plaintiff's fall. A relevant example of his involvement is that he conducted and minuted a site safety inspection with a representative from Fulghums and Robert Williamson, from TEC, on 17 January 1995. Norths' mechanical engineer, Greg Stanford, who directed Mr Ingram to undertake this inspection, also regularly attended the site. Mr Stanford attended all but one of the principals' site meetings which took place prior to the plaintiff's fall.
38 So as to co-ordinate their efforts as to safety, Loughrans, TEC and Fulghums, engaged the services of the same safety consultant, Paul Scarfe. He conducted inductions, which included instructions about safety. Site specific safety manuals were prepared for Loughrans and TEC. From the commencement of work on the project in November 1994, a variety of weekly site meetings were held. Representatives of the main entities involved on the site met on a weekly basis (principals' site meetings). Those represented at these meetings included Norths, Fulghums, Loughrans and TEC. Safety was one of the many matters dealt with in these meetings. Detailed minutes were kept of the meetings and copies were distributed to all concerned. In addition to the principals' site meetings, representatives of the companies involved in carrying out work on the site met on a weekly basis (sub-contractors' site meeting). Loughrans, TEC and Fulghums were invariably represented at these meetings, the primary focus of which seems to have been co-ordinating the work and monitoring progress. Work practices and other matters relevant to safety were also dealt with at these meetings, the minutes of which were circulated to all concerned.
39 From the commencement of the project, Loughrans and TEC conducted regular "toolbox meetings" with their workers at which matters, including safety concerns, were discussed.
40 Until the end of December 1994, representatives from Loughrans, TEC and Fulghums held weekly site meetings where safety concerns and problems referable to the activities of each company were discussed. As the workforce expanded, from the end of December 1994, the safety meetings became safety walks, a procedure which involved representatives from each of the companies referred to together inspecting the site for safety concerns. Minutes of what transpired at the safety meetings, and subsequently the safety walks, were prepared and circulated.
41 Norths had no direct involvement in the cable pull. Norths did, however, have a role in relation to site safety in general. Norths was represented at all weekly principals' site meetings, usually by at least two employees, and North by its employees, monitored the progress of the development. The key link between Norths and the plaintiff's fall is the information which Mr Davis provided to Mr Stanford late on Friday, 20 January 1995 about the missing section of walkway from C20 and the temporary steps Mr Davis had taken to warn of the danger presented by the missing walkway.
42 No employee of TEC was an active participant in the cable pull. TEC was responsible for the construction of the conveyor walkway which Loughrans needed to utilise in order to carry out the cable pull. No witnesses from TEC were called to give evidence. The following answer was provided by TEC's manager, Vincent Smith, to an interrogatory delivered to that company:
Did the Third Named Defendant know that the hole existed before the Plaintiff went onto the walkway on 21 January, 1995? If yes, how did the Third Names Defendant come to know of it and when did the Third Named Defendant come to know of it?
9. Yes. The Engineering Company installed the walkway and knew that the hole was there because the company had been supplied with one less panel of grating than was needed to complete the walkway so the job could not be completed. The Thirdnamed Defendant came to know of that a couple of days before 21 January 1995. In consequence, the ladder which gave access to the walkway was removed to prevent access."
43 I reject this answer. The information contained in the following evidence from Mr Williamson and Mr Miller satisfies me that: by 4 January 1995, TEC was aware of the gap in the walkway; and the temporary ladder was left in place until the stairs were installed.
44 Two statements from Mr Robert Williamson, TEC's site supervisor, were put into evidence. The first statement, which is handwritten, is as follows:
CONV 20 WAS ERECTED EARLIER THAN NEEDED TO ALLOW 'HIGH' CRANES TO BE USED OFF SITE.
MAIN STRUCTURE ERECTION WAS COMPLETED ON WED 4-1-95 AFTER WHICH IT WAS CONSIDERED A LOW COMMITMENT AREA FOR TEC ACTIVITIES. THE STAIRWAY WAS LEFT OFF INTENTIONALLY MEANING ACCESS COULD ONLY BE GAINED USING A 6M EXTENSION LADDER.
AT THE CONTRACTORS MEETING ON LATE AFTERNOON OF 19-1-95, P HOKKANEN AND D COUSINS REQUESTED THE STAIRS BE INSTALLED TO ALLOW A CABLE TRAY SUPPORT TO BE ATTACHED AND ALSO TO ALLOW A LARGE CONTINGENT OF ELECTRICIANS ACCESS TO PULL CABLES.
AS THE MEETING CARRIED PAST KNOCK OFF TIME, AND R WILLIAMSON WAS COMMITTED TO DUTIES AT TEC SOMERSET THE NEXT DAY, R MILLER WAS INSTRUCTED BY TELEPHONE TO HAVE THE STAIRS INSTALLED ON THE FRIDAY.
N HARDY, BOILERMAKER, DULY INSTALLED THE STAIRS AND TIED A SAFETY BUNTING ROPE ACROSS THEM.
AS THE AREA WAS TO BECOME AN INTENSE WORKSITE FOR ELECTRICIANS AND NFP HAD INSTRUCTED EARLY IN THE CONTRACT THAT EACH CONTRACTOR WAS RESPONSIBLE FOR THE SAFETY OF THEIR OWN WORKFORCE, IT WAS TAKEN AS READ THAT LOUGHRANS WOULD CHECK AND SECURE THE AREA.
TEC HAD NO WORK ACTIVITY FOR CONV 20 UNTIL THE FOLLOWING WEEK.
THE GRIDMESH PIECE MISSING HAD ALREADY BEEN ORDERED BUT NOT YET RECEIVED."
The second statement, which is typed, is as follows:
"DEPARTMENT OF STATE DEVELOPMENT AND RESOURCES TASMANIA
STATES - Conveyor 20 was erected earlier than needed to allow 'high' cranes to be used offsite.
The main structure erection was completed on Wednesday 4th January 1995 after which it was considered a no commitment area for T E C activities. The stairway was left off to prevent access to the unfinished conveyor.
At the contractors meeting on late afternoon on the 19th January 1995 P Hokkenan and D Cousens requested the stairs be installed to carry out several works with their workforce.
As the meeting carried past knock off time, and I was committed to other duties offsite next day I instructed R Miller by phone to have the stairs installed on Friday 20th January 1995.
As the area was to become an intense worksite for Electricians, and N F P had instructed early in the contract that each contractor was responsible for the safety of their own workforce it was taken as read that Loughrans would check and secure the area. T E C had no work activity for C20 until the following week.
45 The typed statement provided by Mr Williamson to the Department of State Development and Resources Tasmania appears to be based on his handwritten statement. I note that: in the second paragraph of the typed statement, the conveyor is referred to as a "no" commitment area, but in the handwritten statement it is referred to as a "low" commitment area; and the typed statement does not include any reference to the matter dealt with in the last paragraph of the written statement, that is "the gridmesh piece missing had already been ordered but not yet received".
46 A typed statement provided by Rodney Miller to the Department of State Development and Resources Tasmania was put into evidence, together with two pages of his undated notes. The typed statement is as follows:
"DEPARTMENT OF STATE DEVELOPMENT AND RESOURCES TASMANIA
STATES - that I believe on the Tuesday prior to the accident Bob Williams and I had done a safety walk around the Chip Mill site. We noted the area we considered unsafe and had barriers put in place to indicate it was an unsafe area.
On the evening of 19th January 1995 Bob Williamson contacted by phone and instructed me to have the stairs to conveyor 20 fixed in place. These stairs had not been fixed earlier for safety reason. The reason Bob gave for fixing the stairs in position was that Loughrans needed to fix a bracket to the stairs for a cable tray as they also wanted to do a cable pull on the Saturday.
On Friday the 20th I instructed a Nigel Hardy to fit the stairs to Conveyor 20. Nigel carried out this work early in the morning of the 20th January and came back to me when he had completed the job and advised me he had put the barrier flags in place at the base of the stairs and that he was now going home.
For the Friday and Saturday I was working in another area of the mill site and late on the Saturday I heard there had been an accident.
"THE ERECTION OF CONV 20 WAS DONE BEFORE PROGRAM BECAUSE MOBILE CRANES BEING USED HAD OTHER WORK COMMITMENTS.
ONCE THE MAIN STRUCTURE WAS ERECTED ALL WORK STOPPED IN THIS AREA ON JAN 4TH.
IN THE EVENING OF THE 19TH JAN BOB WILLIAMSON PHONED ME AT HOME & TOLD ME TO ERECT THE STAIRWAY TO CONV 20 BECAUSE LOUGHRANS ELECTRICAL HAD A BRACKET TO WELD TO THE STAIRS FOR A CABLE TRAY RUN & THAT ELECTRICAL CABLES WERE GOING TO BE PULLED UP CONV 20 ON SAT 21ST.
ON FRIDAY 20TH I INSTRUCTED NIGEL HARDY TO ERECT THE STAIRS, WHEN DONE HE TIED A SAFETY BARRIER ACROSS THE BASE OF THE STAIRWAY.
BEFORE LOUGHRAN'S PERSONELL ENTERED THE WORK AREA LOUGHRAN'S SUPERVISORS SHOULD HAVE CHECKED THE CONV TO SEE IF IT WAS SAFE TO CARRY OUT THEIR WORKS.
MISSING GRATING FOR CONV 20 WAS MEASURED & ORDERED A WEEK BEFORE THE INCEDENT.
EMPLOYEES & HIRED CONTRACTORS LEFT DURING THE DAY BECAUSE OF RAIN
BLOWING GALE FORCE, IT WAS MENTIONED THAT LOUGHRANS SHOULD NOT HAVE BEEN ON THE CONV.
NFP INFORMED ALL CONTRACTORS THAT THEY RESPONSIBLE FOR THEIR OWN SAFETY."
47 Mr Rutherford said that he would liken Mr Williamson's role for TEC at the site to that of his own and that Rodney Miller was the person who TEC had on site performing a similar role to that of Doug Couzens.
48 I find that from 4 January 1995, TEC was aware that its construction of the walkway was incomplete and that there was a gap in the walkway where a section remained to be installed. An extension ladder provided temporary access to the walkway. A flag rope had been tied across the ladder as a warning of the gap. On 20 January 1995, when TEC installed stairs to the walkway, nothing was done by TEC to: rectify the danger presented by the gap in the walkway; and warn Loughrans employees, or anyone else, of that danger. I reject the assertion in the documents of Mr Williamson and Mr Miller, to which I have referred, that Nigel Hardy, having installed the stairs, put barrier flags at the base of the stairs. In the light of the evidence of Mr Davis, I find that no barrier flags or the like were placed across the stairs until Mr Davis attended to this late on 20 January 1995.
49 I am not satisfied that the plaintiff was fully frank in relation to some matters about which he gave evidence; and I consider that on occasions when he consulted doctors prior to his trial, and when he gave evidence, he over-stated the magnitude of some of his disabilities.
50 In the course of giving evidence, the plaintiff denied having a recall of a number of matters including:
* anything that occurred prior to his fall on the day of its occurrence;
* making a signed statement to an employee of the Department of State Development and Resources Tasmania on 6 June 1995 referable to the accident;
* giving sworn evidence at the hearing of his claim for workers compensation on 14 December 1995 and matters incidental thereto; and
* answering interrogatories in relation to the accident, the answers having been sworn on 10 September 1998, and related matters such as consulting his lawyer to provide the answers and attending to swear the answers.
51 The following is a copy of a written statement which the plaintiff provided to the Department of State Development and Resources Tasmania:
"DEPARTMENT OF STATE DEVELOPMENT AND RESOURCES TASMANIA
STATES - On January 21st 1995 I was employed by Loughrans Electrical to work at the Hampshire chip mill. About lunch time a decision was made that some of the cables on C20 (Conveyor 20) had to be put in. After the decision was made to put the cables onto C20 I with the site foreman, manager, Gregg Sharman and other workers assessed the route, and the best method to get the cables from A to B on the conveyor.
It was decided the best method was up over the end of C20, down the conveyor to the control room. I then next fitted the necessary pulleys in place so that the pull cord would run as needed. I next set up all the associated work necessary in preparation for the cable to be pulled. This was done with a number of other workmen.
During all this time I had walked up and down the conveyor walkway a number of times. I remember the hole in the walkway but not clearly where. This hole did not worry me because I was focused on the job to be done, but there had been discussions on the hole. I can remember thinking that because of the hole I would have a minimum number of men above it to pull the cable.
I remember the cable reaching the motor control room and still lying in the conveyor after this. I do not remember anything after that.
52 In answer to interrogatories sworn on 10 September 1998, the plaintiff distinguished between: answers that he averred were true and correct to the best of his knowledge; answers he could not provide because of his lack of recall; and answers that were provided to the best of his belief, from what he had been told by others, and what he had read in accident reports. As to matters of which he knew, he said:
* he was not the supervisor of the work being performed as such; he was working as part of a team; and the actual supervision was being conducted by Michael Rutherford and Doug Couzens, who gave him permission to go onto the conveyor walkway;
* that he did not believe that there were any flags at or near the steps leading to the walkway, and he did not remove a rope banner erected at or near those steps; and
* that he did not know of the existence of the hole in the walkway prior to seeing it when he was on the walkway.
53 As to the plaintiff's recall of some of the events which occurred on the day of his fall, prior to its occurrence, it is pertinent that when, on 11 June 1996, he consulted Dr Maclaine-Cross, the plaintiff briefly described the events which preceded his fall, told the doctor he had crossed the gap in the walkway on six occasions, and said that subsequent to his recall of positioning the cables, his next memory was of his last two days in hospital.
54 In the witness box the plaintiff denied any recall of: anything that occurred prior to his fall, on the day of its occurrence; making a statement to the Department on 9 June 1995; or providing answers to interrogatories on 10 September 1998.
55 I am satisfied that subsequent to the day of the plaintiff's fall, the plaintiff had an actual recall of some of the events of that day. I am in no doubt that parts of the plaintiff's statement to the Department reflect his actual recall at that time. Whilst some portions of the statement may have been based on what the plaintiff had been told subsequent to his accident rather than his actual recall, the comment, "I can remember thinking that because of the hole I would have a minimum number of men above it to pull the cable", is plainly not based on what the plaintiff was subsequently told. The plaintiff's answers to interrogatories would have been elicited with the assistance of his solicitor. I have no doubt that at the time the answers were provided, the plaintiff had an actual recall of the information contained in the answers which he averred were true and correct to the best of his knowledge. Whilst the plaintiff suffered mild permanent brain damage in his fall, I am not persuaded that this or any other circumstance explains his asserted failure to now recall any of the events of the day of his fall and the statement and answers to interrogatories which he provided referable to the same. I am satisfied that the plaintiff's denial in evidence of any recall of these and some other matters was a device to which he resorted in order to avoid cross-examination about those matters.
56 A not infrequent by-product of adversarial litigation is the tendency of a party to exaggerate or embellish his or her evidence. Whilst the plaintiff was not immune from this tendency, and notwithstanding my rejections of the plaintiff's claims not to recall some matters, I, in the main, accept the plaintiff as a credible and reliable witness. He gave evidence for about three days. Notwithstanding the disabilities from which he undoubtedly suffers, he at no time, whilst confined to the witness box, took the opportunity to manifest pain or discomfort. When he physically demonstrated any aspect of his evidence, he moved fluently and quickly. He was a careful and articulate witness, demonstrated an above-average memory, and the capacity to understand and respond to questions.
57 The plaintiff alleges that each defendant breached a statutory duty imposed on that defendant by the Industrial Safety, Health, and Welfare (Administrative and General) Regulations 1979 ("the Regulations") to ensure that every floor in a work place has a surface free from holes.
58 At the relevant time, the applicable legislation was contained in the Industrial Safety, Health, and Welfare Act 1977 ("the Act") and the Regulations. The Regulations, PtV, is headed "Safety Provisions" and contains 28 Divisions dealing with safety requirements in relation to a number of aspects of work places and a number of activities or implements used in the course of work. Division 11 of that Part relates to floors, and reg88(2), which is contained in that Division, provides as follows:
"(2) Every floor in a work place shall have an even, unbroken, slip-resistant surface free from holes, indentations, projections, or other obstructions that might create tripping or stumbling hazards."
"2 - (1) In these regulations, unless the contrary intention appears -
'occupier' in relation to a work place means the person employing or causing persons to be engaged in any industry carried on in, or on, that work place and includes a manager, foreman, agent, or other person acting in the general management or control of that work place;
'work place' means any premises or place in which persons are employed or engaged in industry.
3 - (1) Where the duty to observe any of the provisions of these regulations is not specifically imposed on any person it shall be the duty of the occupier of the work place to observe or cause to be observed such provisions."
"3 - (1) In this Act, unless the contrary intention appears -
'industry' means any industry, trade, business, undertaking, profession, calling, function, process, or work in which persons are employed or engaged, and includes the use of machinery in an educational or training establishment;"
61 On behalf of the defendants, it is contended that reg88(2) did not apply to the Hampshire Mill site as it was not a work place, but a construction site. The terms "work place" and "industrial" are given a very wide meaning by the legislation and encompass the engagement of persons in work at any premises or place; this would ordinarily include the engagement of workers on a construction site. No provision in the applicable legislation deals specifically with construction sites in any relevant context and the term "construction site" is not defined in the legislation. Insofar as the Act, s4(1) defines "construction work", this has been done so as to impose an obligation specific to construction work; the Act, s29, requires that notice be given of the commencement of construction work. The Regulations, PtVI, Div26, deal with the same matter. No provision in the Act or the Regulations is capable of providing a basis for construing reg88(2) as not applying to construction sites and I am not persuaded that its scope should be so confined.
62 The word "floor" is not defined in the legislation. In Rice v Henley [1914] HCA 75; (1914) 19 CLR 19, the court was called upon to consider a regulation which provided that "All well holes and similar openings in floors be effectively guarded". Griffith CJ, at 21, said:
"Without attempting to give a complete definition it seems to me that the governing word in the regulation is the word 'floors.' That is not a technical word. We all know what it means. A floor may be permanent or temporary, but in either case it must be something that can be fairly described as a floor, and the ordinary signification is an area apparently covered in. When there is such a floor, if there is a well-hole or similar opening in it, it must be effectively guarded. If in this case the whole of the girders and joists had been practically all covered in, so that an ordinary person would think that he might walk about safely without finding a trap, then I think the regulation would apply."
"In interpreting an Act which is directed to guarding against accidents and to the preservation of human life I think one should endeavour to carry out the objects of the legislature as far as the language of the Act will reasonably permit. But in this case I think the language does not go so far as is necessary for the appellant's case. There is no doubt that the word 'floor' is the key-note of this case. What does 'floor' in that particular part of regulation 20 mean? Does it mean floor in the sense of a ground floor or a first floor; or does it mean the place where one ordinarily walks? I think it has the latter meaning."
63 Isaacs J's observation that in interpreting legislation which is directed to guarding against accidents and the preservation of human life, one should endeavour to carry out the objects of the legislature as far as the language of the legislation will reasonably permit, is apposite to this case and is consistent with the Acts Interpretation Act 1931, s8A.
64 Whilst ordinarily a floor is an area in an enclosed or covered space, the situation may be otherwise. In Sullivan v Hall Russell & Co Ltd 1964 SLT 192 at 193, Lord Kissen said:
"I think that the normal and ordinary meaning of a floor is the lower surface of an enclosed space, such as a room or similar place. It can, in ordinary usage of language, also be used to describe certain surfaces on which people walk or stand or on which objects are placed and which are designed or constructed or adapted for people to walk or stand on or to have objects placed thereon. Before there can be a 'floor', which is not in an enclosed space, I think that its surface must be constructed or adapted for people to walk or stand on or to hold objects. ... A floor can be constructed in the open air, but it will depend on the whole circumstances whether floor is an apt word to describe a constructed surface in the open air."
65 The walkway under consideration was constructed for people to walk on, and in the circumstances of this case, the word floor is apt to describe the walkway. As to whether reg88(2) extends to such an external walkway, I consider that the use in that provision of the words "Every floor" in conjunction with the words "in a work place" is significant. Rather than confining the word "floor" to floors inside a building or under cover, the regulation expressly extends to "Every floor in a work place". A "work place" means any premises or place in which persons or employees are engaged in industry, the Regulations, reg2(1). The relevant meaning ascribed to "premise" by the Macquarie Dictionary is:
"'premise' - a the property forming the subject of a conveyance. b a tract of land. c a house or building with the grounds, etc, belonging to it."
66 The meanings ascribed to "place" by the same dictionary include:
"'place' - 1 a particular portion of space, of definite or indefinite extent. 3 the portion of space occupied by anything. 4 a space or spot, set apart or used for a particular purpose: a place of worship."
In my view, the words "any premises or place" as used in the definition of "work place" extend the meaning of work place to any area where persons are employed or engaged in work and there is no basis for confining this term to an area which is under cover or which is inside a building. When regard is paid to this extended meaning of "work place" within the phrase "Every floor in a work place", it is clear that for the purposes of reg88(2), a floor may include any surface in a work place which can properly be so described, regardless of whether it is under cover or inside a building; see Godden v Metropolitan Meat Industry Board [1972] 2 NSWLR 103 at 194.
67 The sole purpose of the portion of the conveyor which constitutes a walkway is to provide a surface upon which users of the conveyor can walk. In the context of the legislation and in the circumstances of the walkway, I have no hesitation in finding that the walkway is a floor.
68 An alternative contention advanced by the defendants is that whilst the walkway, upon completion, might be held to be a floor, it was not complete at the time of the plaintiff's fall and for this reason could not be considered to be a floor. The distinction which this contention endeavours to draw is, in my view, not apt to this case. Plainly, before a structure which is intended to be a floor can have the attributes of a floor, its construction must have progressed to the stage that it has those attributes. In this case, the construction of the walkway had progressed to the point that it had all the attributes of a floor and its constructor, TEC, had made it available to Loughrans for use as a floor. That it remained for TEC to install at least one, and probably two, gratings in the walkway (which walkway had a total length of about 150 metres), did not deprive the structure of its character as a walkway and floor. I am accordingly satisfied that the Regulations, reg88(2), has been breached in that a floor (the walkway) in a work place (the Hampshire Mill site) was not free from holes.
69 As the duty to comply with the Regulations, reg88(2), is not specifically imposed on any person, the duty is imposed on the occupier of the work place by the Regulations, reg3(1). For the purposes of the Regulations, the term "occupier" is given an artificial meaning by reg2(1) in relation to the Hampshire Mill site, it means the person employing or causing persons to be engaged in any industry carried on in, or on, that site. The reference in the Regulations to occupier in the singular should include the plural, occupiers, unless a contrary intention is apparent; Acts Interpretation Act, s29(d), Blue Metal Industries Ltd v Dilley & Anor [1969] UKPCHCA 2; (1967) 117 CLR 651, No 20 Cannon Street Ltd v Singer & Friedlander Ltd [1974] 1 Ch 229 at 241 - 242. I am unable to discern from the Regulations an intention that the word "occupier" should not, in the context of this matter, include the plural: indeed, the contrary is the case. The definition given to the word "occupier" in relation to a work place covers the person employing or causing persons to be engaged in any industry carried on at the work place and includes a manager, foreman, agent or other person acting in the general management or control of that work place. The definition recognises that there may be more than one occupier of a work place.
70 In my view, each of the defendants is an occupier of the work place within the artificial meaning given to that term in the Regulations. Each defendant employed and caused persons to be engaged in work on the site and more particularly each defendant caused persons to be engaged in work upon the walkway. I am accordingly satisfied that each defendant has breached the statutory duty imposed by reg88(2), and that the plaintiff being among the class of persons that the regulation was intended to protect, he can rely on each defendant's statutory breach to recover damages.
71 The plaintiff also contends that each defendant has breached a common law duty owed to him by the particular defendant. In my consideration of the issues raised in relation to the defendants' negligence and the plaintiff's contributory negligence, I have endeavoured to always keep in mind that I am reviewing the facts with the benefit of hindsight. The following passage from the decision in Rosenberg v Percival [2001] HCA 18; (2001) 75 ALJR 734, Gleeson CJ, par16, is pertinent:
"There is an aspect of such a question which may form an important part of the context in which a trial judge considers the issue of causation. In the way in which litigation proceeds, the conduct of the parties is seen through the prism of hindsight. A foreseeable risk has eventuated, and harm has resulted. The particular risk becomes the focus of attention. But at the time of the allegedly tortious conduct, there may have been no reason to single it out from a number of adverse contingencies, or to attach to it the significance it later assumed. Recent judgments in this Court have drawn attention to the danger of a failure, after the event, to take account of the context, before or at the time of the event, in which a contingency was to be evaluated."
It is admitted that, consistent with a finding of the Workers Rehabilitation and Compensation Tribunal, the plaintiff had a contract of service with Loughrans and was a worker within the meaning given to that term by the Workers Rehabilitation and Compensation Act 1988. Whilst some features of the plaintiff's engagement by Loughrans differ from those which commonly apply between an employer and an employee, the differences have no bearing on the common law duty Loughrans owed to the plaintiff; its duty was to take reasonable care for the safety of the plaintiff by, amongst other things, providing a safe place of work and a safe system of work.
It was legitimate for Loughrans to expect that TEC would construct a walkway which was safe, and that TEC would only provide access to the walkway if it was safe. Nevertheless, Loughrans had found it necessary to arrange for TEC to provide access to the walkway on the day prior to the cable pull. Whilst the walkway had been used in the course of the construction of the conveyor, Loughrans must have been aware that the day of the cable pull was the first occasion on which the walkway would in effect be available for general use. Loughrans was also aware that the construction of the conveyor was not complete. Against this background, before work commenced on the conveyor, it was necessary for Loughrans to assess the safety of the conveyor as a place of work. Implicitly, this task was left to the plaintiff, as the leader of the workers on the conveyor. This was appropriate; the plaintiff was an experienced and apparently responsible worker. I do not consider that anything flows from the fact that the requirement that the plaintiff perform this task was implicit and not express.
Liability is clearly established against Loughrans from the time that the plaintiff and Mr Meldrum accessed the walkway and discovered the gap. From that time on, nine Loughrans employees, besides the plaintiff, became aware of the gap in the walkway before the plaintiff fell. They must all have been aware of the dangers constituted by the gap. All of these workers, in some instances with reluctance, acquiesced to the cable pull proceeding without the gap being covered.
I visited the site and inspected the section of walkway which was missing. It would have been an easy task to have temporarily and safely covered the gap which resulted from its absence. The job required no more than measuring, cutting and securing an appropriate piece of plywood; the latter being readily available on the site. I doubt that the job would have taken more than ten minutes to perform.
Each of the plaintiff's co-workers, regardless of their seniority, should have insisted on the work being deferred until the gap was covered, and, if necessary, personally taken steps to cover the gap. If the plaintiff continued to resist a co-worker's efforts to remedy the situation, then complaint should have been made to Mr Rutherford, Mr Couzens or Mr Sharman. With the backing of a complaint, particularly at an early stage in the progress of the work, it is to be expected that Mr Sharman would have been more vigorous about stopping the work than he was when he came upon the gap shortly prior to the plaintiff's fall. Plainly, Loughrans, by its employees, breached its duty to take reasonable care for the safety of the plaintiff and this breach was a cause of the plaintiff's injury.
TEC constructed the conveyor walkway and was aware that it was to be utilised by Loughrans workers on the day following TEC's installation of a regular means of access to the walkway. Notwithstanding TEC's knowledge that a grating was missing from the walkway, it did nothing: to attend to, or make safe, this deficiency; or acquaint Loughrans with the deficiency. From both an objective and a subjective standpoint, TEC must have realised there was a risk that a user of the walkway would be injured as a consequence of the gap; this was TEC's reason for delaying the provison of regular access to the walkway. TEC, having the previous day, provided access to the walkway so as to enable the group of workers which included the plaintiff to use it, those workers were entitled to rely on TEC to provide a walkway which was safe. I have no hesitation in finding, bearing in mind considerations of proximity, reliance and foreseeability, that TEC owed the group of workers a duty to provide a safe walkway. Patently TEC breached that duty and this breach was a cause of the plaintiff's injuries. Had TEC done what it ought to have done, covered the gap, the plaintiff would not have been injured.
Norths, as the occupier of the Hampshire Mill site, within the ordinary meaning of the term "occupier", owed a general duty of care to those who had entered upon the site; Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479. Norths was plainly conscious of this duty and, subject to one exception to which I will refer, did a number of things that went a long way towards discharging the duty. It imposed contractual obligations as to safety on Fulghums, which company in turn imposed contractual obligations as to safety upon sub-contractors. These contractual obligations included requirements as to monitoring site safety and safe practices on the site. Norths involved its personnel in this process; and their involvement was substantive not superficial. Minutes of site safety meetings and site safety walks, as well as the minutes of other regular meetings that touched on safety, support the tenor of the evidence that, generally, close attention was paid to safety. Counsel for the plaintiff submits that the results of a safety walk carried out on 22 January 1995 show otherwise. I do not agree. Whilst the detailed minutes of this walk refer to a number of matters which required attention, I do not consider that this is indicative of a lack of concern about safety. This walk took place on the day following the plaintiff's fall, an occurrence which is likely to have precipitated meticulous attention to all potential dangers on the site. The site is large and I would expect a safety inspection conducted in these circumstances to reveal a number of matters that warranted attention.
72 The exception to which I have referred relates to Mr Stanford's reaction to Mr Davis' advice about the gap in the walkway and the need for him to tie flag rope across the stairs to the walkway in order to warn others of the danger presented by the gap. Mr Stanford was closely involved in monitoring the progress of the project, which was due for completion early in February 1995. Mr Stanford was not called as a witness. In the absence of evidence from him, besides the answer to an interrogatory already referred to, I infer that he was aware that workers would use the walkway over the weekend of 21 and 22 January 1995. Against this background, upon him being advised of the gap in the walkway, it was incumbent on him to take steps that reasonably satisfied him that before work resumed on Saturday 21 January 1995, the gap in the walkway would be covered. That Mr Davis had tied a safety rope across the stairs did not relieve Mr Stanford of this obligation. The only evidence I have about what Mr Stanford did after receiving Mr Davis' information is that Mr Stanford went inside a site office. I am unable to reach any conclusion on the balance of probabilities about what steps, if any, Mr Stanford took to have the gap covered. In these circumstances, I am satisfied that Norths, by its employee, breached its duty to the plaintiff and that the breach, a failure to take steps to have the gap covered prior to the resumption of work on 21 January 1995, was a cause of the plaintiff's injuries.
73 The plaintiff has established that each defendant has breached a statutory duty, as well as a common law duty of care owed to the plaintiff by each defendant.
74 Each defendant asserts that the plaintiff is guilty of contributory negligence. The plaintiff will be held responsible for contributory negligence if he has exposed himself to a risk of injury which might reasonably have been foreseen and avoided and the injury he has suffered is within the class of risk to which he was exposed: Nance v British Columbia Electric Railway Co Ltd [1951] AC 601 at 611; Jones v Livox Quarries Ltd [1952] EWCA Civ 2; [1952] 2 QB 608 at 615; Froom v Butcher [1975] EWCA Civ 6; [1976] QB 286 at 291. The test of contributory negligence is an objective one. The plaintiff is held to the standard of care expected of an ordinary reasonable person engaging in the conduct that caused the plaintiff's injury: Joslyn v Berryman; Wentworth Shire Council v Berryman [2003] HCA 34, pars32, 35 and 70.
75 Insofar as the plaintiff is a worker and one of the defendants stands in the position of his employer, the following paragraph from Bankstown Foundry Pty Ltd v Braistina [1986] HCA 20; (1986) 160 CLR 301 at 310 is relevant:
"A worker will be guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonable and prudent man, he would expose himself to risk of injury. But his conduct must be judged in the context of a finding that the employer had failed to use reasonable care to provide a safe system of work, thereby exposing him to unnecessary risks. The question will be whether, in the circumstances and under the conditions in which he was required to work, the conduct of the worker amounted to mere inadvertence, inattention or misjudgment, or to negligence rendering him responsible in part for the damage."
76 There was some inconsistency in the evidence about the flag rope. I find that Mr Davis tied the flag rope across the stairs as he described and that the rope was in place when the plaintiff first accessed the walkway. I infer that the plaintiff removed, or partly removed, the flag rope to facilitate access. It was almost inevitable that he would do so. Stairs had, only the previous day, been installed to provide Loughrans with access to the walkway. Save for the general warning provided to the plaintiff by the flag rope, the plaintiff had no warning of the gap in the walkway until he came upon it. The magnitude of the danger presented by the gap was immediately obvious; anyone who fell through it was likely to die. The evidence satisfies me that all concerned, including the plaintiff, recognised that the plaintiff was the leader of the group on the walkway. He was in charge of a group of workers who were to undertake work which required them to pass over the gap in the course of performing the activities involved in the cable pull. The plaintiff should have decided that work would not proceed until the gap had been covered. Instead, in the face of concerns expressed by some of his crew, he pressed on with the work. Whilst Loughrans was subject to time constraints in relation to the completion of its contract, I am not satisfied that the pressure so imposed was other than usual, or more particularly, that pressure was put on the plaintiff to complete the cable pull. It is understandable that a reasonable worker would want to get on with the job, however, it was fool-hardy in the extreme for the plaintiff not to arrange for the gap to be covered; covering the gap was a simple task and there were ample Loughrans workers available to attend to it. Some witnesses, including Mr Rutherford, gave evidence that it was TEC's responsibility to cover the gap; that being so, TEC should have been immediately requested to do so. TEC was represented on the site all that Saturday by Rodney Miller; he was eminently suited to arranging for the gap to be covered, or (if it was available) to arranging for the installation of the grating that had been ordered for the gap. That gating was installed first thing the next day. If there was concern about delaying the cable pull until TEC had covered the gap, then, in my view, the danger presented by the gap was so great that no question of demarcation should have deterred the plaintiff from directing Loughrans employees to cover the hole. The plaintiff and others worked on the conveyor for at least two hours before his fall. Whilst the plaintiff's action in stepping into the gap may be explained on the basis of inattention, his failure to defer work until the gap had been covered and his persistence with work for an extended period in the face of the danger presented by the gap cannot be so categorised and was the antithesis of the conduct of a reasonable and prudent man. The contributory negligence of the plaintiff is established.
77 The Wrongs Act 1954, s4(1), relevantly provides:
"4 (1) Where a person suffers damage as the result partly of that person's wrongful act and partly of the wrongful act of any other person, a claim in respect of that damage is not defeated by reason of the wrongful act of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable, having regard to the claimant's share in the responsibility for the damage;"
78 Consistent with this provision, responsibility may only be apportioned amongst parties to the action. In Vail v Formato 10 MVR 12, King CJ, whose decision had the agreement of the other members of the court, said at 13, with respect to a statutory provision in much the same terms to the above provision:
"This statutory provision clearly contemplates an apportionment of responsibility as between the parties to the action and the reduction of the plaintiff's claim by such proportion as is just and equitable, having regard to the respective shares of the responsibility for the accident of the parties to the action. His Honour was therefore wrong to endeavour to apportion responsibility for the accident in a way which included the responsibility of a driver who was not a party to the action at all."
79 As to my approach when making an apportionment, I am guided by the following passage from Podrebersek v Australian Iron and Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492 at 494:
"The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, ie of the degree of departure from the standard of care of the reasonable man (Pennington v Norris [1956] HCA 26; (1956) 96 CLR 10, at p 16) and of the relative importance of the acts of the parties in causing the damage: Stapley v Gypsum Mines Ltd [1953] UKHL 4; (1953) AC 663, at p 682; Smith v McIntyre (1958) Tas SR 36, at pp 42-49 and Broadhurst v Millman [1976] VicRp 15; (1976) VR 208, at p 219 and cases there cited. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination."
80 I am mindful of the need to take a balanced approach to the question of apportionment and am conscious of what was said in Liftronic Pty Ltd v Unver [2001] HCA 24, Gummow and Callinan JJ, par60, as to "too ready a judicial inclination to absolve people in the work place from the duty that they have to look out for their own safety which will often depend more, or as much, upon their own prudence and compliance with directions, as upon any measures that a careful employer may introduce and seek to maintain".
81 A distinction which may be drawn between the plaintiff and each defendant is that the plaintiff has not breached a statutory duty. A matter as to which the position of the parties is much the same, is that if any one of the parties had taken the simple and easy step of ensuring that the gap was covered and prohibiting work on the walkway until this had occurred, the plaintiff's injuries would have been avoided. The opportunity of taking this step, albeit by varying means, was available to each party. However, save as between the plaintiff and Loughrans, there are considerable differences between the period during which this opportunity was available to each party and the imminence of the threat which each party should have perceived.
82 Much that I have said about the contributory negligence of the plaintiff applies to Loughrans by its workers. They, like the plaintiff, were aware of the magnitude and immediacy of the danger, and to varying degrees, they had a similar time to that of the plaintiff to address the danger. Mr Sharman is an obvious exception. The plaintiff's fall occurred within a very short time of him joining the workers on the walkway. The plaintiff's dismissal of such concerns as the workers expressed to him about the gap is of relevance to my apportionment of responsibility, as is the number of Loughrans workers who, like the plaintiff, worked regardless of the gap.
83 TEC was aware of the danger presented by the gap from 4 January 1995 when construction work on the conveyor ceased. Whilst at that time the danger presented by the gap was foreseeable rather than immediate, TEC should, at that time, have covered the gap. Access via a temporary ladder was available to the walkway. The presence of a flag rope across that ladder would not have barred workers from accessing the walkway and did no more than provide a general warning that there were hazards on the conveyor. That TEC workers might access the walkway was recognised by Mr Williamson in his handwritten statement where he said that after 4 January 1995 the conveyor was a "low commitment area for TEC activities". It seems that TEC was indifferent to the danger constituted by the gap. Not only did it fail to cover the gap, but from Mr Miller's notes, it seems that the missing grating was not ordered until about 13 January 1995. A further indication of TEC's indifference to the danger presented by the gap is the installation of the grating prior to work commencing on Sunday, 22 January 1995. This strongly suggests that the grating was available for installation, but that TEC had not attended to the task. By 20 January 1995, the likelihood that an injury would result from TEC's failure to cover the gap was real and imminent. TEC (certainly Mr Williamson and probably Mr Miller) knew that access to the walkway was required "to allow a large contingent of electricians ... to pull cables". Armed with this knowledge, TEC persisted with its failure to cover the gap and did not warn Loughrans of the gap. It is noteworthy that neither Mr Williamson nor Mr Miller said they gave a direction that at the same time that access was provided to the walkway the gap should be covered. The latter task would have been far easier for Mr Hardy to perform than the installation of the stairs. That this direction was apparently not given suggests that Mr Williamson and Mr Miller did not address the risks of the gap. This suggestion finds further support in the absence of any reference in their statements and notes to giving a direction about providing a warning of the danger presented by the gap. As no flag rope was across the stairs when Mr Davis accessed the walkway on the same day that the stairs were installed, in the absence of any evidence from any of the TEC employees referred to, I am not satisfied that Mr Hardy put flag rope across the stairs or that he advised Mr Miller that he had done so.
84 Norths (Mr Stanford) did not become aware of the gap in the walkway and the risk that it constituted to workers until late on 20 January 1995. At that time, the serious risk that the gap constituted was foreseeable, imminent and easily avoidable. Mr Stanford was aware that workers were likely to use the walkway the next day. There was a real risk that a worker would not see the gap and it was foreseeable that workers might work on the walkway notwithstanding the presence of the gap. It is not uncommon for workers to work in the presence of a known danger. Whilst Mr Stanford's knowledge that Mr Davis had tied a flag rope across the stairs may explain Norths' failure to act, it does not excuse the inaction. The flag rope did no more than forewarn workers of a danger on the conveyor. As the representative of the principal on the site, the reasonable and prudent thing for Mr Stanford to have done was to take steps which ensured that the gap was covered and that until it was covered, no work was carried out on the walkway.
85 I consider that an appropriate apportionment of responsibility as between the parties is:
* multiple fractures of the right frontal (forehead) bone and right orbit involving the nasal and frontal sinuses;
* dramatic mydriasis of the right eye (dilation of the pupil);
* a small right haemopneumothorax (accumulation of blood and gas in the right pleural cavity);
* minimally displaced fractures of the transverse processes of the lumbar vertebrae L1 and L5; and
* trauma to the right kidney with the main manifestations being macroscopic haematuria (blood plainly apparent in the urine).
87 On 22 January 1995, the plaintiff underwent an open debridement reduction and temporary fixation of his right wrist. He was discharged from hospital on 1 February 1995 and readmitted on 12 February 1995 for the next stage of the treatment of his right wrist. An arthrodesis was performed on the wrist on 13 February 1995, the bone for the necessary graft being taken from his right iliac crest. He was discharged from hospital on 17 February 1995. When discharged, his mobility was restricted by the wound on his hip from where the bone graft was taken. To get around, he needed elbow crutches, the use of which was made more difficult by his right arm being in plaster until May 1995. It took about four weeks for him to regain mobility.
88 I accept that the plaintiff has little, if any, recall of his first two periods of hospitalisation. During the initial period of his recuperation, he suffered significant pain, primarily in his right arm, hip, head and lower back. He found sleep difficult. He needed assistance with personal matters including toilet functions and feeding. He was frustrated and upset by the need to rely on others; he required the intensive help and support of his wife, Lisa, for several weeks. He benefited from pain relieving exercises he was instructed on by a nurse who visited him at home on a weekly basis for a period of about eight weeks from early March 1995.
89 To regain his mobility, arm strength and dexterity, he pursued an exercise regime which initially substantially increased his pain. To relieve his lumbar pain, he lay on the floor, and to relieve his wrist pain he kept the wrist in a sling in a horizontal position. Within a short time, he did without pain-killing medication which he only found necessary when suffering from what he described as the fierce, sharp pains which were the immediate result of his fall. Once these pains settled to what he described as a continuous dull pain, he ceased taking pain-killing medication as he was concerned about its effect on his body.
90 The plaintiff is right handed. As a consequence of the injury to his right arm, he began the process of learning to undertake tasks with his left hand which he had previously performed with his right hand, such as writing and feeding. Whilst he still primarily writes with his right hand, to relieve the strain on that hand, he sometimes writes with his left hand.
91 Fractures to the transverse processes of the plaintiff's lower back vertebrae L1 and L5 caused him low back pain. This initially made sitting painful. He was able to reduce his discomfort by using a pillow which was adapted to suit his needs. As he mobilised, he found that bending and lifting as well as prolonged periods of sitting and standing brought on back pain.
92 In late March 1995, he was approached on several occasions by Mr Rutherford from Loughrans about returning to work. Prior to his accident, the plaintiff had done the bulk of the estimation work for a successful quote submitted by Loughrans to Norths referable to the construction of a mobile woodchip loader. By March 1995, that work had been completed and it was necessary for Loughrans to identify any extra work for which it was entitled to charge. As the plaintiff had prepared the initial quote, he was in a good position to identify extra work. Mr Rutherford, who was anxious to obtain the plaintiff's assistance, told the plaintiff that if he did not help, Loughrans could lose up to $50,000. The plaintiff was not fit to return to work but agreed to help if Loughrans would arrange for him to be driven to and from Loughrans' office. The plaintiff was unable to drive, his arm was still in plaster. Whatever the explanation provided to the plaintiff to induce him to return to work, it seems clear from the invoices he provided to Loughrans for the work he performed, that he worked on many matters besides the claim for extras on the ship loader. The plaintiff resumed working with Loughrans in early April 1995. He worked irregular hours on irregular days, dependent upon his capacity and Loughrans' needs. He worked a total of 36 days between early April and the end of June 1995. His invoices show that in the main he worked an eight hour day, but on some days worked for as few as three hours; his longest day, 28 June 1995, was 13.5 hours. He ceased working for Loughrans on 30 June 1995.
93 I infer from the plaintiff's claim for kilometres travelled in an invoice provided to Loughrans dated 5 May 1995 that by that time the plaintiff was able to drive.
94 Shortly prior to the determination of the plaintiff's employment with Loughrans, he was approached by Mr Vardie, a director of Multi-Construction Services, a building company for whom the plaintiff had done a lot of work at Cradle Mountain and on the Freycinet Peninsula. That company was to build a further 22 - 30 cabins at Cradle Mountain and 24 cabins on the Freycinet Peninsula and wanted the plaintiff to undertake the electrical work. Mr Rutherford encouraged the plaintiff to take on this work, and the plaintiff agreed to do so after Mr Vardie offered the plaintiff a trip to New Zealand and some money up-front as an inducement. The plaintiff employed Michael Meldrum from Loughrans as an assistant in order to have someone available to perform tasks which were physically beyond the plaintiff. Throughout the balance of 1995, the plaintiff attended the work sites at Cradle Mountain and on the Freycinet Peninsula, supervised the work and did such work as he was able to perform. He found it difficult to use tools such as pliers and screwdrivers in his left hand. Towards the end of 1995, he was able to use his right hand again, but lacked strength and dexterity in the hand. He found it difficult to use a screwdriver in his right hand as he could not bend his right wrist. Whilst the plaintiff can use a battery drill or electric drill for some purposes, he cannot rely on these tools when judging whether the tension on a screw is appropriate, this is a matter of touch and feel. The plaintiff found that four days' physical work exacerbated his pain. If he worked physically on a daily basis, he had to significantly reduce the hours he worked. The plaintiff's work for Multi-Construction Services concluded at about the end of 1995.
95 On 21 January 1996, the Workers Compensation Tribunal ruled that the plaintiff was entitled to receive compensation from Loughrans in respect of his injuries and thereupon the plaintiff was able to fund the surgery he wished to undertake to alleviate some of his disabilities.
96 An issue that has arisen is whether the plaintiff has suffered from episodes of actual unconsciousness, syncope, since the accident as distinct from episodes of dizziness. On 16 November 1995, the plaintiff consulted Mr Ghali, an ear nose and throat surgeon, in relation to "feeling unsteadiness rather than vertiginous attacks", the symptoms having started six weeks previously after the plaintiff had suffered upper respiratory tract infections. Mr Ghali's investigations established that as a consequence of the plaintiff's facial fractures, his nose had been fractured and was deformed, his nasal septum was badly deviated to the right and his airway badly compromised. In dealing with these problems, Mr Ghali, on 5 March 1996 and on 28 May 1996, carried out nasal surgery on the plaintiff which involved re-breaking the plaintiff's nose, the pain of which, the plaintiff said, was the worst pain you can have.
97 Mr F G Binns, an orthopaedic surgeon, treated the plaintiff's right arm injuries. On 12 June 1996 in the course of a consultation with Mr Binns, the plaintiff said that he had suffered from a lot of dizzy spells and was not sure if the nasal surgery he had undergone had fixed the problem. On 11 June 1996, when the plaintiff for the first time consulted Dr A Maclaine-Cross, a consultant physician, the plaintiff told the doctor that following his accident, he had experienced balance problems, episodes of vertigo, usually triggered by movement. The plaintiff said that corrective surgery had improved the problem and he had only had one episode of vertigo over the previous two months. On 17 February 1999, the plaintiff told Dr Maclaine-Cross that the vertigo had improved and was now only a problem following a respiratory tract infection when, for 3 or 4 days, he would suffer from transient vertigo following a quick body movement. On 24 July 2000, the plaintiff told Dr Maclaine-Cross his vertigo problems had settled in June 1996. I take this to mean that it was no longer a significant problem, but that he continued to occasionally suffer from dizziness. On 31 May 2000, the plaintiff told Mr Ghali that he was still suffering from dizziness, mainly positional in nature.
98 In evidence, the plaintiff elevated his complaints of episodes of occasional dizziness and balance problems to episodes of blackouts, that is, loss of consciousness which began to occur in September 1995 once he resumed physical activity. He said that the blackouts occurred 3 - 4 times a year. He said instances occurred after activities such as climbing a ladder, or bending down to a power point. He blamed an incident of lost consciousness for a fall he suffered in January 2001 when he fractured the meticarpal bone to the little finger of his right hand. On 21 January 2003, the plaintiff told Dr Maclaine-Cross that: he had suffered from episodes of loss of consciousness, syncope, since his accident; the episodes were not preceded by any warning symptoms; and they most commonly occurred when he was trying to negotiate a ladder; squatting, kneeling or bending and moved his head or neck suddenly. The plaintiff told the doctor that prior to the nasal surgery carried out by Mr Ghali, the incidents had occurred every 2 - 3 weeks, but since the surgery the episodes had occurred 3 or 4 times per year.
99 I am satisfied that since his accident the plaintiff has, on occasions, suffered from dizzy spells, vertigo, triggered by sudden movements. It is not unusual for people who have sustained head injuries like those suffered by the plaintiff to develop lasting problems with vertigo. I do not accept the plaintiff's evidence that he suffers from episodes of loss of consciousness and has done so since the accident. No mention was made of episodes of loss of consciousness when the plaintiff consulted Mr Ghali in relation to his concerns about dizziness, or when the plaintiff told Dr Maclaine-Cross about these difficulties on 11 June 1996, 17 February 1999 and 24 July 2000. Had the plaintiff in fact suffered from episodes of unconsciousness, I expect that he would have mentioned this to his doctors. Such episodes, had they occurred, would have been a cause of major concern to the plaintiff and there is no reason why he would not have mentioned them to his doctors. In rejecting this evidence, I should say that whilst the plaintiff said these episodes occurred in the presence of others, no witness gave evidence of observing the plaintiff so suffer. The plaintiff's wife could bring to mind an occasion when the plaintiff had stood up and then sat down because of dizziness. The plaintiff continues to drive. This suggests that he does not suffer from occasional, unanticipated episodes of unconsciousness; if he did so, I have little doubt that his driving would be a matter of considerable concern to both he and his wife, and there is no suggestion that this has been the case.
100 On 16 November 1995, when the plaintiff consulted Mr Ghali in relation to unsteadiness, the doctor performed an audiogram which revealed a drop in the plaintiff's left ear hearing. When reporting on this loss on 20 June 2000, the doctor said it was of a mild nature. I accept this assessment. In the course of giving evidence, the plaintiff did not appear to have any difficulty hearing and I conclude that although his right ear hearing is mildly diminished, when he concentrates, as he did in court, he can hear satisfactorily.
101 The injuries to the plaintiff's right arm included the loss of most of the proximal row of his carpal bones, the loss of part of the head of the ulna, and a partial ulna nerve injury with a lot of dirt ingrained in the nerve. The arthrodesis performed on his right wrist achieved a sound result. His ulna nerve palsy did not recover and he is left with reduced sensation in the little, ring and middle fingers of his right hand. In an endeavour to overcome his problems with his ulna nerve, the plaintiff underwent operations on 17 April 1996 and 10 May 1996 which involved the exploration and decompression of the nerve at his right elbow and his right wrist. Whilst these operations reduced the rigidity of his wrist, they did not lessen his ulna nerve-related problems. They also set back his progress insofar as he contracted a staph infection whilst in hospital, and he lost right arm strength and hand dexterity whilst recuperating. By the end of 1995, with the aid of exercises, he had regained the ability to close his right hand into a fist. The surgery carried out on his right arm in 1996 put him back to where he had been in early 1995 with regard to wrist pain and his ability to utilise his hand. His levels of distress, lack of confidence and indecision were also, once again, much the same as they had been following his accident. To maximise the use of his right hand, he again had to go through a regime of exercises and physiotherapy which he found irritating and frustrating. For a short time after each of the 1996 operations, he found it necessary to resort to pain-killing medication. The pain and discomfort he suffered as a consequence of the operations severely interfered with his daily comfort, his capacity to sleep and his relationship with his wife. Using a chain saw he had previously gathered wood for the home as needed. He was frustrated to be unable to perform tasks such as this and irked by the need to pay for the delivery of firewood. He found it difficult to restrict his physical interaction with his children.
102 On 11 June 1996, when consulting Dr Maclaine-Cross, the plaintiff reported some mild changes in memory since the accident. He said his memory was not as good as it had been and he now had to compensate by writing things down. The plaintiff was subsequently assessed by Mr M Marriott, a clinical and forensic psychologist, who confirmed that the trauma which caused the plaintiff's facial fractures had also caused him to suffer a frontal lobe injury. On 28 June 1999, Mr Marriott reported that the results of tests he had carried out on the plaintiff were consistent with the plaintiff having suffered a mild residual brain injury involving the following:
"* Largely intact general intelligence with minor signs of drifting attention, average rather than above average mental arithmetic abilities, and a problem with visual analysis
* Slightly compromised verbal learning and rapid forgetting of newly learned material
* Poor self-monitoring on a verbal fluency task indicative of impulsivity or disinhibition
* Major difficulties on a test of concept formation and conceptual flexibility indicating that he will struggle with abstract problem-solving"
Mr Marriott also expressed the view that the plaintiff had lost some intellectual ability, "perhaps in the order of 10-15 IQ points on the [Wechsler Adult Intelligence Scale-Revised]".
103 The plaintiff and other witness say, and I accept, that the plaintiff's memory has not been as good since the accident and that prior to the accident he had a very good memory. The plaintiff now finds it necessary to note all his daily work in a diary. He finds it difficult to recall the manner in which he performed particular jobs; with the result that if a problem subsequently occurs in relation to a job, it is more difficult for him to resolve it. He did not have this difficulty prior to the accident.
104 Mr Coates, the proprietor of T and J Coates Waste Management Pty Ltd ("CWM"), a business that utilises the plaintiff's services, said that he has recently put in place a programme of providing the plaintiff with photographs and electrical diagrams of particular plants his business engages the plaintiff to work on. This has been done in order to enhance the plaintiff's ability to recall the configuration of each plant and to assist the plaintiff in diagnosing problems.
105 I accept that the plaintiff's capacity to recall has been reduced; however, I am not satisfied that this reduction is substantial. In the course of giving evidence, the plaintiff demonstrated that he retains a formidable memory. I also accept that together with the diminution of the plaintiff's memory, there has been a reduction in his intellectual capacity to perform tasks such as diagnosing the cause of faults. Again, I am not satisfied that there has been a substantial reduction in that capacity. Mr Coates' business currently engages the plaintiff to investigate faults referable to waste water plants. Mr Coates said that: his business uses the plaintiff for this work because of his expertise and ability to diagnose problems; and the benefit of utilising his services was that he has the ability to analyse what is wrong and either fix it himself or tell Mr Coates what needs to be done.
106 The trauma of the plaintiff's fall also damaged his right eye. On about 1 July 1996, the plaintiff consulted Dr M Haybittel, an ophthalmologist, complaining of diminished vision in that eye and difficulty with depth perception. The doctor assessed the visual actuity of the plaintiff's right eye at 6/12 (6/6 is normal) and attributed the plaintiff's reduced visibility to traumatic optic neuropathy caused by the fall. The condition of the plaintiff's right eye is permanent and stable. This reduction in the plaintiff's right eye vision, coupled with his long standing esophoria (a tendency for the right eye to turn in) has significantly compromised the plaintiff's ability to maintain single binocular vision, resulting in double vision. When the plaintiff is tired, blurring makes it difficult for him to read the small print on items such as cables and to see sufficiently clearly to perform precision work such as fine electrical terminations. After about half an hour of the sort of work that strains the plaintiff's eyes, he needs to rest, this prolongs the time that it takes him to perform tasks. Such work can also bring on headaches and dizziness.
107 The need to provide for his family motivated the plaintiff to return to the work force. His perception was that his entitlement to receive workers compensation was governed by the estimate of a surgeon who treated him of the time it would take him to recover from an operation. In consequence, he only recovered weekly compensation for the periods from 21 January 1995 to 5 May 1995 and 5 March 1996 to 14 June 1996.
108 By August 1996, the plaintiff had resumed taking on light electrical work. As a result of his brain injury, he was not confident in his ability to quote for significant jobs. He was also careful to ensure that he only sought work which was within his physical and intellectual capacities.
109 By late 1996, the plaintiff was able to work for two or three days a week, dependent upon the nature of the work. He avoided work involving heavy manipulative tasks and looked for domestic type work involving clients who were willing to work alongside the plaintiff and do physical work that the plaintiff thought was beyond him. Because of his disabilities, the plaintiff avoided light industrial work and commercial work which involved the use of heavy cables and materials. Lifting and manipulating cables aggravated his back pain. His susceptibility to back pain was a major limitation on the type of work he could undertake. To relieve his back pain, when exacerbated, the plaintiff found it necessary to lie flat on his back for periods of up to an hour. He continues, to this day, to resort to this form of relief. The plaintiff said that in 1997, more than three days' domestic electrical work elevated his low back pain from a continuous level of about 2 or 3 out of 10 to a level of about 8 out of 10, and at the latter level, rest was a necessity. That level of activity also inflamed his right wrist. He said that notwithstanding these problems, to satisfy clients, he often worked for five or more days straight.
110 The plaintiff has found that exercises help him control his pain and obtain pain relief. He has developed the habit of performing full body muscle stretches every morning and every evening and regularly massaging his right wrist.
111 In early 2000, the plaintiff was approached by Mr Doug Couzens, who had been Loughrans' site supervisor at the Hampshire Mill at the time of the plaintiff's accident. Mr Couzens requested the plaintiff to assist him with electrical work Mr Couzens' business, Central Electrical Services Pty Ltd, was to perform at the Mt Lyell mine, Queenstown. Mr Couzens' business had been engaged to install a high voltage substation and a pumping station in the mine. Mr Couzens said that as he needed some additional skill and expertise on the project, he approached the plaintiff for assistance. The plaintiff worked on the project for about six weeks and during this period he worked 12 hour shifts. The project required the plaintiff to perform a lot of heavy work; this was confirmed by Mr Couzens, who said the plaintiff appeared to perform the work without difficulty. The plaintiff said he had to push himself in order to do what was necessary; and this exacerbated his back pain, inflamed his right wrist, and damaged his left elbow. He said that in order to reduce the strain on his right wrist, he over-used his left arm; and this brought on pain in his left elbow, the cause of which was diagnosed as a left lateral epicondylitis - a tennis elbow. Anti-inflammatory drugs provided the plaintiff with some relief from this condition, although rest was prescribed as the primary remedy. When the plaintiff consulted Dr Maclaine-Cross on 24 July 2000, the plaintiff told the doctor that he had finished work on 15 May 2000 due to his left elbow. In evidence the plaintiff initially said he was off work from the time he left the Mt Lyell job until September 2000 and that he had medical certificates to be off work. He went on to give evidence to the effect that in May or June 2000 he performed work for CWM. I conclude that during this period the plaintiff had not completely ceased work, but was working intermittently and avoiding work which exacerbated his disabilities.
112 Tony Coates, the proprietor of CWM, and the plaintiff have enjoyed a work based friendship since they met when working on the construction of cabins at Cradle Mountain in 1988. At the time of the plaintiff's accident, Mr Coates was in Western Australia. He returned to Tasmania about 18 months after the plaintiff's accident and at some time thereafter his business, CWM, began engaging the services of the plaintiff. CWM obtained a contract to manage a waste water plant at Lake St Clair. The plaintiff did some wiring work at that plant in about May 1999 and was engaged to maintain the electrical work at the plant. In about May or June 2000, at Mr Coates' request, the plaintiff performed some work at the Lake St Clair plant. Mr Coates drove the plaintiff to the plant and stayed for the duration of the work. The work was reasonably heavy and the plaintiff said that, due to soreness, he was only able to work for part of each day that he was at the site. Mr Coates said that the plaintiff did not cope with the work anything like as well as he had coped with work prior to his accident.
113 CWM also manages plants for the Kentish Council at Sheffield, for the Henty Gold Mine, and at Cradle Mountain. CWM provides a 24 hour call-out service for the plants it manages. Mr Coates assesses that about 80 per cent of the problems which prompt a call-out are electrical. For this reason he ordinarily responds to call-outs by sending the plaintiff. Mr Coates follows this course because, even if the problem is not electrical, the plaintiff, through his work with CWM, has gained the expertise to diagnose the problem and call in whoever is needed to deal with it. Mr Coates says this saves a lot of time and CWM's speed at dealing with 24-hour emergency call-outs is probably one of the reasons why it has so much work.
114 By the latter part of 2000, the plaintiff was doing as much work as he was able to through his business. Whilst he did not undertake any major contracts, he had a reasonable amount of sporadic work through connections such as CWM and the Parks and Wildlife Service. Following his accident, he had been able to retain a good percentage of the Service's work at Cradle Mountain.
115 On 22 January 2001, the plaintiff fell from a bench in his workshop. Whilst I accept that the plaintiff's accident-related disabilities played a causative role in the fall, I reject the plaintiff's evidence that he fell because he blacked out. As the plaintiff fell, he struck the little finger of his right hand and, as he thought, dislocated a bone which he manipulated back into position. Subsequently it emerged that the plaintiff had broken his right fifth metacarpal bone. As a consequence of the reduced sensation the plaintiff has in the three ulna fingers of his right hand, he did not realise the extent of this injury until the hand became swollen. On 12 February 2001, the plaintiff underwent an operation to reduce his fractured metacarpal, which was stabilised with two pins, and to remove the plate and screws that had been inserted in his arm in 1995 when the arthrodesis was performed. The pins securing the fractured metacarpal were removed about 6 to 8 weeks subsequent to the operation. During this period, the plaintiff's lower right arm was inactive and he lost strength and flexibility in that limb. It took him about three months to restore the wrist to its pre-operation state.
116 In about May 2001, Devonport Electrical Services advertised for a full time electrician. The proprietor of that business, Kevin Roach, is a friend and colleague of the plaintiff. Mr Roach was approached by the plaintiff about the job, and the plaintiff explained that he could not work full time and did not want to close the door on his own business. It was agreed that the plaintiff would work for Devonport Electrical Services for three days a week. After fulfilling that arrangement for about two months, the plaintiff was approached by Mr Roach to take charge of an 8 week project that Devonport Electrical Services had made with Simplot Australia to upgrade that company's vegetable repacking line. This required the plaintiff to work for 40 hours per week, but with the assistance of four workers who were subject to his supervision. Whilst the plaintiff found it difficult to carry out this work, his performance apparently impressed Simplot as, at the conclusion of the project, in about late September 2001, Simplot made a direct arrangement with the plaintiff to work for it as an electrical sub-contractor. The plaintiff fulfilled this arrangement for periods of up to 40 hours per week until February 2002, when the work ran out. The work did not require a lot of heavy lifting and the plaintiff could obtain assistance from other electrical contractors and labourers on the site. The plaintiff pushed himself to perform this work, as he needed funds to meet a work-related damages claim which had been successfully pursued against him.
117 After the Simplot work ran out, the plaintiff resumed domestic work, primarily work where the customer was available to work alongside the plaintiff and relieve him of any burdensome physical tasks. He also continued to work for CWM, and the quantity of work emanating from that source increased in May 2002 when it engaged the plaintiff to deal with pump breakdowns and the like for the Kentish Council. This required the plaintiff to do, on average, about six hours' work a week for CWM.
118 In September 2002, the plaintiff was approached by the head electrician at Simplot to undertake 6 to 8 weeks' work. The plaintiff explained that due to his other commitments, he could only do about 30 hours a week work for Simplot, and he was engaged on that basis. In late September 2002, whilst playing cricket for the Wilmot Cricket Club, the plaintiff exacerbated his right arm injury when taking a catch. He was unable to work for about four days and when he returned to work, he was only able to perform light duties. On 14 December 2002 he again hurt his right hand when he was bumped by his young son as they were playing with a ball. The pain was sufficient for the plaintiff to attend hospital to check that his hand had not been fractured. The plaintiff said that since this incident, he has not worked except for about 6 hours of work at Simplot in early January 2003, and some work in his own workshop. He said that 10 minutes' work with his right hand brings on a heavy dull pain and he is not confident that he will be able to return to regular work.
119 I am not persuaded that these recent incidents indicate a significant or permanent deterioration in the condition of the plaintiff's right wrist. Mr Binns examined the plaintiff on 17 January 2003, and save for the surgery referable to the plaintiff's fifth metacarpal, Mr Binns reported that the plaintiff's physical findings were really no different from those observed when he examined the plaintiff on 29 May 2000. Dr Maclaine-Cross said the pain the plaintiff complained of subsequent to his son bumping his hand was fairly typical of neuritic pain, nerve pain, resulting from a small nerve being caught up in the extensive scar tissue in the plaintiff's wrist. I accept this as the likely explanation for the pain.
120 The plaintiff has on-going arrangements to work with CWM on the waste water plants which are subject to its control. Mr Coates, the proprietor of CWM, said he intends involving the plaintiff in up-coming work for the Kentish Council, that is, an $80,000 contract to upgrade pump wells, and the construction of a new sewerage plant at Sheffield. Mr Coates estimates that over the past year CWM has engaged the plaintiff's services for about a day a week. Mr Coates is optimistic about the future of his business, which employs 6 casual workers and one fulltime worker. He estimates that on the basis of the projects that CWM is now involved in, the business will triple its employees over the next three years.
122 The plaintiff and his wife have been partners in the business, Nelson South Electrical Contractor, since 1 December 1992. The entirety of the income of the business is derived from the efforts of the plaintiff and the exploitation of his earning capacity. His wife's contribution to the income of the partnership is nominal. But for the plaintiff's injuries, he would have had under his control the whole of the fruits of his skill and labour. I will assess his loss of earning capacity, as well as his taxation liability, on the basis that he would have been the sole recipient of the income. This process involves an attempt to identity what net income the plaintiff would have had at his disposal, and being an attempt to predict what would have happened, it can never be exact. The apparent precision of the mathematical calculation involved in the process should not obscure the reality that the process is of necessity inexact: Husher v Husher [1999] HCA 47; (1999) 197 CLR 138 pars 18 - 26.
123 Between and including the financial years ending 30 June 1989 and 30 June 1994, the annual net profit of the plaintiff's business varied from a high of $47,915 for the financial year ended 30 June 1990 to a low of $18,567 for the financial year ended 30 June 1993. During the financial year which ended 30 June 1995, the plaintiff had entered into an arrangement with Loughrans which was likely to stabilise the fluctuations in his earnings as he was virtually working full time, albeit at an hourly rate. Subsequent to the plaintiff's accident, his workers compensation rate was calculated at $861 per week, that is $44,772 per annum. I consider that amount to be a realistic guide to the plaintiff's likely earnings at that time. For reasons that I will detail later, I consider that the plaintiff's earnings are likely to have increased to about $60,000 per annum by 2003. In assessing his loss, I proceed on the basis that his earnings during the relevant period would probably have increased by average annual increments of 3.75 per cent, with the following result:
The best guide to the plaintiff's loss of earnings during this period is the weekly payments of workers compensation he received, $14,689 gross, an after tax loss of $10,336. Counsel for the plaintiff submits that I should add $10,526 to that sum, this being said to be the amount paid by the business in wages to Michael Meldrum during the financial year ended 30 June 1995. Whilst at one point in his evidence the plaintiff identified the amount of $10,526 as having been paid to Michael Meldrum for his work on the Freycinet Peninsula project, it is clear that the plaintiff was mistaken. That project did not commence until after the plaintiff ceased working for Loughrans on 30 June 1995. The amount paid in wages to Michael Meldrum is reflected in the accounts of the business for the financial year ended 30 June 1996. I do not know to whom the business paid wages during the financial year ended 30 June 1995 or why those wages were paid. I am not satisfied that the wages were paid because the plaintiff could not work during the latter half of that financial year. The business paid larger sums in wages in three of the previous six financial years. In any event, the plaintiff's weekly compensation was calculated on the basis that he was engaged full time by Loughrans, so it would be inappropriate to, in addition, compensate the plaintiff on the basis that, but for his injuries, he would have been free to do the work in respect of which the business paid wages. I assess the plaintiff's net loss for the period from 21 January 1995 to 30 June 1996 at $10,336. I should say that when determining the tax payable in a particular financial year, I have relied on the taxation calculator in the Australian Master Tax Guide for that year.
In this financial year, the business made a loss of $21,570. That loss must be carried forward and deducted from the future income of the business until absorbed. I will deal with the loss by not taking into account any amount for the profit of the business for the financial years ended 30 June 2002 and 30 June 2003.
133 I total my estimates of the plaintiff's past loss of earnings, as follows:
134 The plaintiff returned to work within about nine weeks of his accident at a time when he was still significantly disabled by the injuries to his head, upper arm and lumbar spine. He did not use the disabilities as an excuse to avoid returning to work and strove to overcome them. When the resources to treat his disabilities became available, he underwent two operations for his facial injuries and two operations for his ulnar nerve problem. Setbacks have not diverted him from persisting with his endeavours to overcome his disabilities. For example, he has, on a number of occasions as a consequence of operative procedures, had to pursue a significant exercise regime to regain and maximise his use of his lower right arm. To improve his opportunity of obtaining work within his capacities, he sought and underwent extra training. He obtained: a high voltage cable joining certificate; a fibre optic cable joining certificate; a communication CAT 5 joining, termination and cabling certificate; and an Australian Communication Authority certificate.
135 The evidence of the plaintiff's efforts to overcome his injuries and return to the workforce, and my assessment of the plaintiff as he gave evidence, satisfy me that his capacity and drive to overcome adversity is well above normal. Whilst I consider this to be an innate quality of the plaintiff, I am conscious that he attributes his motivation to his faith in God and the love of his family. In assessing the plaintiff's future prospects, I do not disregard the possibility that if he loses that faith or that love, his drive and application could be adversely affected.
136 As already recorded, I estimate the plaintiff's current gross earning capacity at $60,000 per annum. Matthew Ling said that he currently earns about $72,000 - $75,000 per annum as an electrician performing shift work in underground mines at Rennison and Rosebery. He is required to work 12 hour shifts in batches of seven days, the batches being separated by alternate periods of three days off and four days off. Because of the plaintiff's commitment to his family, I consider it unlikely that he would have undertaken shift work of this nature. Had the plaintiff continued as a general contractor, his earnings would have fluctuated significantly. I consider that it is more likely that he would have persisted with arrangements such as that which he had made with Loughrans, that is, working in the main at an hourly rate for one work provider, but continuing to do work for other customers. By pursuing this course, he would have avoided many of the contingencies associated with running a one-man electrical business and stabilised his earnings. At the base rate of $28 per hour paid by Simplot, if the plaintiff worked for 40 hours per week, his annual earnings would be $58,240. Had the plaintiff gone into permanent employment, I can see no reason why his income would not have been at a similar level to that of Mr Sharman, $57,621 per annum, plus $4,609 for superannuation, a total of $62,230. It is on the basis of this evidence that I estimate that the plaintiff's current earnings, had he not been involved in the accident, would have been about $60,000 per annum.
137 As a result of the accident, the plaintiff suffers from a multitude of disabilities which adversely affect his capacity to earn income. He can no longer perform heavy or consistent physical work. His capacity to perform work requiring dexterity has been reduced by both his arm injury and vision problems arising from his right eye injury. His capacity to perform the intellectual aspects of his work has been reduced by his brain injury. He is justifiably less confident about the work he can undertake and is confined to performing work within his abilities.
138 Real and significant as the plaintiff's incapacities are, he nevertheless retains a substantial capacity to work as demonstrated by his endeavours since the accident and the readiness with which people who are aware of his problems have engaged and re-engaged the plaintiff to carry out work. Whilst a lesser person, who suffers as the plaintiff does, may have given up, the plaintiff's drive, courage and faith, coupled with the substantial capacities that he retains, leaves me in no doubt that he will remain in the workforce for some time.
139 As evidenced by the plaintiff's dealings with Mr Coates of CWM and Simplot, work is available to the plaintiff on a regular basis which allows the plaintiff, to a degree, to match the work to his capacities. An alternative course which the plaintiff could pursue is to employ a trade's assistant or the like to perform the physical aspects of any work which the plaintiff considers to be beyond his capacity. Whilst this would reduce the plaintiff's net return from his endeavours, it could extend the duration of his day to day work and would enlarge the nature of the work that he could undertake. A further alternative is for the plaintiff to work in an area which does not involve him in physical work such as supervision or management. I accept the plaintiff's description of himself as being very good at people management. I am satisfied that notwithstanding his disabilities, he maintains the expertise and qualities that would make him a useful supervisor or manager. Prior to his accident, the plaintiff was a good estimator. Whilst his capacities in that regard have been reduced, again, I am satisfied that he retains sufficient skills to find employment in this field.
140 Doing the best I can, I assess that the plaintiff retains 50 per cent of his earning capacity. The plaintiff is 38 years of age and I expect him to retain that earning capacity for 17 years, when he will be 55 years of age. Had he not been injured, I expect that the plaintiff would have worked until he was 65 years of age.
141 In calculating the plaintiff's loss, I rely on Tables 2 and 3D in Luntz, H, Assessment of Damages for Personal Injury and Death, 4 ed. I estimate the capital value of the plaintiff's future earning capacity on the basis that his current annual income had he not been injured would have been $60,000 gross, $44,420 after tax, that is, $854.23 per week after tax. The present value of regular loss of $1 per week for a man aged 38 ceasing at age 65 is $630.70 (Table 3D). On this basis, the capital value of the plaintiff's future after-tax earning capacity is $854.23 x $630.70 = $538,763. The present value of $1 per week to a person aged 38 for 17 years is $527 (Table 2). Accepting, as I do, that the plaintiff has retained earning capacity of 50 per cent until he attains the age of 55, the capital value of this capacity is 50 per cent of $845.23 per week after tax, that is, $422.62 x $527 = $222,721.
142 In considering contingencies, I am conscious that had the plaintiff not been injured, his drive and abilities may have resulted in him earning more than I have estimated and working for longer than I have estimated. On the other hand, it may be that his earnings would have been less than I have estimated as a consequence of sickness, accident or lack of work. I consider it highly unlikely that the plaintiff, in his pre-accident condition, would have been out of work for an extended period. I have, of course, recognised that during a period of economic inactivity the plaintiff may have found it difficult to obtain appropriately remunerative work. In considering the possibility that regardless of his injuries the plaintiff may have lost income due to injury or accident, I am conscious that the plaintiff works with electricity and in situations where work can involve considerable risks. The plaintiff is a "can do" worker who, as his accident demonstrates, tends to focus on getting the work done at the expense of safety considerations. The plaintiff's pre-accident health is also relevant. Prior to the accident he had suffered from esopheria, his right eye tends to turn in. To deal with this condition, in 1987, the plaintiff was prescribed glasses with a rectifying prism. It seems that the plaintiff had some hearing problems prior to the accident, as in December 1988, he attended the Burnie hospital complaining of loss of hearing following a fall and in January 1989 he returned to the hospital and requested that he be referred to an ear, nose and throat surgeon referable to the problem. An x-ray of the plaintiff's lumbar spine subsequent to the accident revealed that he had a first degree spondylolisthesis at the vertebal body of L5 and S1. The spondylolisthesis pre-dated the plaintiff's accident. Dr Maclaine-Cross said the slippage was 1 centimetre. There is no suggestion that at any time prior to the plaintiff's accident any of the matters to which I have referred had interfered with his employment. Their existence is, however, relevant to his vulnerability and the possibility that they might have interfered with his capacity to work at some time in the future. I will deduct 15 per cent for contingencies.
143 My calculation of the plaintiff's loss of future earnings is as follows:
Estimated future earning capacity but for the accident
144 This claim is allowed at $4,378, the amount of income tax that I was informed was paid on the plaintiff's weekly compensation.
Expenses associated with surgery on 8 February 2001
146 The plaintiff has had in the past, and says he will seek in the future, treatment from a physiotherapist. The treatment provides the plaintiff with short term relief from his various aches and pains and, I infer, the advice of a physiotherapist assists the plaintiff to avoid exacerbating his injuries and helps him establish exercises he can pursue in his efforts to maximise his capacity. I am in no doubt that the plaintiff will seek the assistance of a physiotherapist in the future. My expectation is that this will occur on an irregular basis with occasional periods of intense treatment. I will make an allowance for eight treatments per annum at a cost of $37 per treatment, that is $294 per annum, or $5.69 per week. The plaintiff's life expectancy is 40 years. The present value of $1 for 40 years is $720 (Table 2). I quantify this claim as $5.69 x $720 = $4,097.
147 The plaintiff has suffered acute pain: in the period immediately following his fall; in the course of the subsequent, and in some instances, delayed, treatment of his injuries; and on occasions when he has exacerbated a vulnerable condition.
148 His kidney injury, unlike his other injuries, has left him with no residual disability.
149 His right arm arthrodesis and related right arm disabilities are permanent. They will forever impair his ability to use his arm and hand. The arm is a regular source of pain when subjected to trauma or over-exercise and is vulnerable to further injury. The strength and dexterity of his lower arm and hand are significantly reduced, as is his capacity to grip with his right hand. I accept Mr Binn's assessment that the plaintiff has lost to the order of 30 per cent of the function of his right arm as a whole.
150 In order to reduce the strain on his right arm, the plaintiff over-used his left arm. This has caused him to suffer from tennis elbow in that arm and the pain associated with that condition. He must now monitor the use of his left arm in order to keep that condition under control.
151 The trauma to the plaintiff's skull has left him with a multitude of disabilities. He has lost a substantial portion of his right eye vision and he is susceptible to double vision. He has mild loss of hearing. He has mild residual brain damage which adversely impacts on his memory, concentration and capacity to solve problems. Whilst he will probably develop improved means of coping with his memory deficiency, his residual brain damage is permanent; it will not resolve and is unlikely to deteriorate.
152 The plaintiff is frequently frustrated by his disabilities, which affect nearly all aspects of his life and adversely influence his relationship with others, most significantly his wife and children.
153 One of his nasal airways is still slightly compromised. He suffers from occasional incidents of dizziness and occasional headaches which can continue for an extended period.
154 He has a noticeable, but not repugnant, scar on the right side of his forehead above his right eye and into his right eye-brow. There is some depression of that eye. He wore glasses prior to the accident. His glasses lessen the cosmetic impression of these disfigurements. He has scars on his lower face in the vicinity of his chin and on his right hip and extensive noticeable scaring to his right arm from the elbow down. I do not expect these scars to have any significant impact on his enjoyment of life, albeit that the scars are noticeable.
155 The fracture to the transverse processes of lumbar vertebras L1 and L5 and related soft tissue ligament injuries render him susceptible to low back pain after prolonged sitting, standing or walking, and a variety of physical activities such as running or lifting and bending.
156 Prior to his accident, the plaintiff enthusiastically and successfully worked, played sport and involved himself in recreational activities. He undertook substantial projects such as building his family's home and renovating an investment property, and enjoyed domestic activities such as gathering firewood and the like. His reduced capacity in relation to matters such as these is a real financial disadvantage. He now constantly suffers from pain, or the threat of pain, when involved in most activities. Pain not infrequently interferes with his sleep. His reduced capacities and vulnerabilities intrude into the bulk of his daily pursuits. I cannot bring to mind any energetic sporting activity he could now sensibly participate in. His capacity to enjoy work and to pursue major physical projects is greatly reduced. The curtailment of his capacities affects his relationship with his wife and children in a multitude of ways. His physical disabilities and his susceptibilities to pain have reduced he and his wife's enjoyment of their physical sexual involvement. It is imprudent for him to involve himself in a variety of physical activities with his wife and children. His injuries will, on occasion, require medical treatment beside the physiotherapy, for which provision has already been made. The changes to his emotional state which include less patience, coupled with an increased susceptibility to anger, loss of confidence and moodiness, inevitably impairs his rapport with his family.
157 I allow the plaintiff $70,000 by way of damages for pain and suffering and loss of amenities.
South
James Loughran & Sons Pty Ltd & Ors [2003] TASSC 59
(1985) 59 ALJR 492
(1914) 19 CLR 19
(1967) 117 CLR 651
(2001) 75 ALJR 734
(1987) 162 CLR 479
(1986) 160 CLR 301
(1956) 96 CLR 10
(1999) 197 CLR 138