Stobbe v Swadling Developments Pty Ltd

The issues

1. To resolve the claim, which is governed by the provisions of the Civil Liability Act 2002 (NSW) ("CLA"), I need to answer the following questions: 1. What was the relevant risk of harm? 2. What precautions ought reasonably to have been taken by the Defendant to minimise that risk of harm? 3. Did the Defendant take such precautions? 4. What was the actual cause of the accident? 5. Was there any contributory negligence by the Plaintiff, and if so, to what extent? 6. What is an appropriate amount of damages?
2. Dealing with each in turn.

The risk of harm (CLA s 5B(1))

1. Because s 5B is concerned with precautions against a risk of harm, it is first essential to identify the relevant risk of harm. The relevant risk of harm, which I think was common ground between the parties, is that gyprock, if stacked on its side, can, particularly when wet, collapse onto any person nearby causing injury. This risk is exacerbated if no instructions or warnings were provided as to safe handling of gyprock. I consider that risk was foreseeable and not insignificant: CLA s 5B(1)(a)‑(b).

Adequate precautions (CLA s 5B(1)(c) and s 5B(2)(c))

1. The real battleground of this case was whether the Defendant took any or any adequate precautions to protect the Plaintiff from the identified risk of harm.
2. To understand this issue a little more, it is necessary to go into some more detail.
3. When the Plaintiff had commenced working on the site, he received no instructions at all other than to be generally orientated as to the geography of the site. In particular, he received no instructions pursuant to s 20(2) of the Work Health and Safety Act 2011 (NSW) ("WHS Act") regarding the safe handling of gyprock, he received no instructions or training addressing any risk of injury when dealing with gyprock or at all pursuant to s 19(3) of the WHS Act, and there was not in place any training in relation to any risks of injury that have been identified as set out in Australian Standard AS/NZS 4804:2001. There was not in place any relevant safe work method statement identifying any risk involved in handling or storing gyprock. In short, he was simply shown the site and given no instructions or warnings at all in general, and in particular nothing in relation to the storage of gyprock. The Plaintiff's case is that to be given relevant instructions and warnings was part of the precautions the Defendant failed to take.
4. The Plaintiff gave evidence that on the Friday before the accident on the Monday, he observed a truck which he thought was delivering the gyprock in the driveway of the adjacent property. From this he assumed that the gyprock had been delivered to the site on the Friday afternoon. Without in any way being critical of the Plaintiff, who I found to be an extremely open and honest witness, his evidence as to that memory was hazy at best. Based on that hazy memory, he was assuming the truck was unloaded on the Friday. The Defendant called Mr Moss, who was the site supervisor employed by the Defendant at the time, who gave evidence which I felt was even more hazy, to the effect that he thought that the gyprock had been delivered early on the Monday morning, although he did not have any real memory of this occurring. Again, I think it is no more than his assumption.
5. The significance of when the gyprock was delivered and for how long it was in the open is because it is common ground that throughout the entire weekend and throughout the Monday morning it was raining heavily, if not consistently then certainly on and off. Where the gyprock was left outside Unit 9, it was exposed to that rain.
6. The state of the evidence as to the timing of the delivery is such that I am not in a position to make a finding any more specific than I am comfortably satisfied that the gyprock had been delivered to the site some time prior to 6:45AM on the Monday, the day of the accident. The reason for this finding is that the Plaintiff was very confident in his recollection that he arrived at the site that morning at about 6:45AM, and that when he arrived the gyprock was already in place.
7. I am satisfied that by the time the Plaintiff got to work on the Monday morning, the gyprock had been placed in sheets along a balcony outside a series of units which were being renovated.
8. Outside each of the units approximately 12 to 15 sheets of gyprock had been stacked on their edges leaning against the wall outside each particular unit that they were to be installed in. In relation to Unit 9, there was originally about 15 sheets stacked in that way outside Unit 9.
9. The balcony was exposed to the elements and by the time the Plaintiff and two other workers started installing gyprock into Unit 9, water from the rain had gotten onto and effected firstly, the outside sheet of gyprock to the point where it had been rendered useless and was discarded. Water damage had also occurred at the bottom edge of the next sheet, and I infer sheets behind it, which had required the Plaintiff and those assisting him to remove or shave down that portion of the sheet.
10. After working throughout the morning in Unit 9, the Plaintiff was on his way to lunch. There were still somewhere between 10 and 12 sheets of gyprock stacked outside Unit 9. As he walked past the gyprock outside Unit 9, he noticed that a sheet of plastic that had been in place over the gyprock in the morning, presumably to protect the gyprock from the rain, was on the ground. He bent over to pick it up with the intention of placing it in some way on top of the gyprock so as to prevent further water damage. His recollection is that prior to, or perhaps at about the time when he was picking up the plastic, all the sheets of gyprock collapsed onto the left side of his back while he was in a bent over position. He tried to grab the windowsill of the window to Unit 9 which he did but it bent. He then let go of the windowsill and sought to manoeuvre his body out of the way, which caused his left leg to get caught, which caused significant injury to both his left knee and ankle.
11. Whilst there was no definitive diagnosis at the time, it was considered at the time that he probably had fully dislocated his left knee. Thereafter the Plaintiff was, as might be expected, in considerable agony and has very little recollection of what occurred immediately thereafter. He eventually was taken to hospital after he had splinted and taped up his own leg. He spent about a week in hospital. There are some photographs of the site. They were taken on the day, after the accident but before the Plaintiff went to hospital i.e., within, at most, an hour of the accident, which show that by that stage the gyprock had been removed and put somewhere else. The photographs also demonstrate just how wet the balcony and surrounds were at the time, and just how exposed to the wet weather the positioning of the gyprock was.
12. It is in that context that the Plaintiff contends that the appropriate precautions, which should have been taken by the Defendant and would have been taken by a reasonable person in the Defendant's position (CLA s 5B(2)), were to firstly, store the gyprock somewhere which was where it was not susceptible to getting wet, and secondly, to store it not vertically but horizontally in a pile, and thirdly to properly instruct the Plaintiff as to the handling of the gyprock. The reason the Plaintiff contends that it is important to keep gyprock dry is because it is accepted that water damages gyprock to the point where it becomes useless and loses its integrity. The reason the Plaintiff contends gyprock should be stacked horizontally rather than leaning against the wall vertically is because of the risk of it, for whatever reason, falling over. The reason the Plaintiff contends he ought to have been adequately instructed is obvious. The combination of the first two risks, that is storing the gyprock leaning against the wall exposed to rain where it is likely to get wet, combined with the lack of any instructions, is the breach of duty contended for by the Plaintiff.
13. On the other hand, the Defendant's position is simple. It says that there is nothing inherently dangerous in storing gyprock leaning upright against a wall and that any manufacturer's instructions to the contrary (and there are many) are for no other purpose than to stop gyprock bending and that, so the Defendant submission goes, there is nothing risky about wet gyprock. In other words, the Defendant's submission is that gyprock leaning against the wall does not become any more unstable if it becomes wet.
14. The Defendant emphasises that building sites are inherently dangerous places, and that what is being suggested by the Plaintiff is some sort of counsel of perfection and does not take into account the practicalities of installing large amounts of gyprock into various parts of a property. It is accepted that there were places within the site where gyprock could have been stored lying flat and/or where it would not have been exposed to water. Those places included other units, albeit they were one floor up from where Unit 9 is located, and therefore gyprock would have to been carried down sheet by sheet as and when needed to the floor below. There was also a storage room I think two floors below Unit 9.
15. The Plaintiff's answer to that submission is that the only inconvenience in taking the precaution that has been identified by the Defendant was some "double handling" which may have had a slight impact on the cost of the building project, albeit that extra cost might well have been cancelled out by saving some gyprock which would inevitably be wasted if it got wet and, whilst there are some safety issues involved in carrying the gyprock further distances, those issues could have readily been ameliorated by having extra helpers to carry.
16. The first question boils down to a question of physics as to whether gyprock stacked upright (albeit leaning) against a wall presents a risk at all. I think when compared to a stack of gyprock piled horizontally on a floor there is a not insubstantial risk, simply caused by the forces of gravity together with the happenstance of things getting knocked or bumped accidentally. The second question is whether wet gyprock, especially if it is wet along an edge which is resting on a floor, with the balance of the item leaning against the wall, is more dangerous in the sense of being more unstable than dry gyprock because it will lose its integrity. I think the experts agree about this in substance, but I also think this is a matter of common sense and common experience. In my opinion, gyprock leaning against a wall with at least its bottom edge being exposed to water will clearly be more unstable than if it was dry. This aspect of risk could easily be dealt with by the precaution of using chocks of wood to keep the bottom edge of the gyprock out of the weather.
17. Whilst I accept that the precautions suggested by the Plaintiff would lead to some "double handling" and extra work, I do not think such double handling significantly increases other safety risks, rather I think that is no more than an insignificant economic consequence to the builder.
18. In all the circumstances, I find that the precautions as to dry and flat storage of the gyprock suggested by the Plaintiff ought to have been taken. The risk of serious injury was significant, the burden of taking the precautions was not great, and in no way would impact on the social utility of properties being renovated. The fact that the precautions were not taken is a breach of duty.
19. As I have said, the second group of precautions contended for by the Plaintiff that the Defendant ought reasonably to have taken were all to do with appropriate instructions, training, and warning to any person on the site who might be handling gyprock, especially gyprock that was stored in the manner that it was stored. I am comfortably satisfied that those precautions ought to have been taken and that there is no issue that they were not.

What actually caused the accident

1. I have outlined the Plaintiff's evidence as to what he said he was doing mechanically immediately before and at the time the gyprock collapsed onto him. His version of events, although this was challenged in cross-examination, has been consistent since the first reports he gave to doctors up to and including the evidence he gave to me. There is no direct evidence to the contrary, no one else actually saw what happened.
2. It was put to the Plaintiff in cross-examination that what really happened was that he had already picked up the piece of plastic, had stood up, was facing the wall, and was somehow trying to hook the plastic between some of the sheets of gyprock so as to secure it, thus causing it to fall on top of him.
3. The basis for that proposition from the Defendant's perspective, was that as a matter of logic there must have been some contact between the Plaintiff and the gyprock so as to set off the collapse. It is accepted that the floor was concrete and therefore vibrations could not have set off the collapse. It is also accepted that there was no wind around, so that is not an explanation. The Defendant's submission ultimately is that if that be how the accident occurred, then the failure by the Defendant to take the precautions I have found they ought to have, was not the cause of the injuries to the Plaintiff.
4. I do not accept that submission for three reasons. The first reason is that, even if that be how the collapse occurred, the failure to take the precautions that I have identified both as to storage and training remains the true cause of the injuries. If the gyprock had been stored horizontally in a dry place, the Plaintiff would not have been seeking to protect it from the rain, but more importantly the very risk that I have identified that is that wet gyprock stacked against the wall might fall over if bumped or interfered with in some way, is exactly what I consider happened. It is no answer for the Defendant to contend that the very risk against which it failed to take precautions eventuated, causing the Plaintiff loss and damage, and then to say that because the Plaintiff was involved in the risk becoming reality that in some way the Defendant is not liable. Secondly, the Defendant admits, as it must, that it entirely failed to have in place any of the work, health, and safety measures required by various regulations. For example, it had not performed a risk assessment in relation to the storage of gyprock, it did not have in place safety instructions for people in the preloading sheets of gyprock, it did not have a site induction program to point out safe methods of handling gyprock in the particular situation the Plaintiff found himself in. All those steps were, to my mind, reasonable precautions to take against the identified risk. The Defendant's answer to that point is that the Plaintiff was an experienced carpenter and builder who had spent years on building sites, and that he did not need to have pointed out to him what are contended to be the obvious risks of wet gyprock leaning against a wall. There is obviously some tension between that submission on behalf the Defendant and its primary submission that there is nothing risky at all in what occurred. Be that as it may I accept the Plaintiff's submission to the effect that even if the mechanics of the accident occurred in the way contended for by the Defendant, then it is the Defendant's various breaches in failing to properly instruct the Plaintiff, and/or have in place safe handling procedures, which ultimately caused the damages claimed. The third reason I do not accept the Defendant's submission is that, having considered all the evidence and the submissions as to probabilities, I am comfortably satisfied that the Plaintiff's description of what he was doing immediately prior to the accident is close to what happened, although I think it is likely that in some way without him noticing it, he has bumped or otherwise touched the gyprock which set off the collapse.
5. For those reasons, I am satisfied that it was the failure of the Defendant to take any of the precautions I have outlined against the risk I have identified that is the ultimate cause of the Plaintiff's injuries.

Contributory negligence

1. The Defendant pleads that, if liability is found in favour of the Plaintiff, there should be a substantial finding of contributory negligence back against the Plaintiff thus reducing his damages.
2. The Defendant's submission is that what the Plaintiff did i.e., try and cover the sheets of gyprock with plastic to protect them from the weather, was such to amount to him failing to take reasonable care himself against what, at this point of the argument, the Defendant brands as an obvious risk, being that the gyprock might have collapsed on him. Instead, the Defendant contends the Plaintiff ought to have found other people to assist him in the process.
3. I do not think that is right. True it is that the Plaintiff did know that the gyprock getting wet would damage it and if he had thought about it would have realised that in so doing it may have become unstable and fallen on him. However, what he was actually doing and attempting to do was not to manipulate in any way, shape, or form the gyprock, rather he was seeking to lift the plastic up and place it over the top of the gyprock. Undoubtedly, he had to think of some method to secure it, probably by placing some timber on top of it or perhaps seeking to slot it in between sheets of gyprock, but on my findings of fact he had not got to that stage of the operation. Rather at some point in trying to simply lift up the plastic, he has somehow bumped the gyprock causing the fall.
4. In my opinion, there is nothing unreasonable or careless in what the Plaintiff was trying to do. It needs to be remembered that this is all in the context of the Defendant criticising the Plaintiff for what he did in circumstances where the Defendant had failed to give the Plaintiff any directions at all as to the safe handling of gyprock. It is also in the context of what the Plaintiff was trying to do was for the benefit of the Defendant, in that he was seeking to protect the Defendant's gyprock from further damage.
5. I reject the plea of contributory negligence.

Damages

1. I set out some more detail as to the Plaintiff's injuries and disabilities.
2. The experts agree that the Plaintiff sustained a material injury to the left knee on 16 March 2020 in which he sustained the following injuries: 1. Medial collateral ligament rupture; 2. Anterior cruciate rupture; 3. Patellofemoral dislocation and relocation; 4. Medial and lateral meniscus tears, for which he required surgical repair of the ACL ligament, a medial and partial meniscectomy and chondroplasty of the medial compartment articular cartilage; and 5. An injury to the left ankle.
3. Dr Porteous, who was called by the Plaintiff, is of the view that whilst favouring his right knee and overusing it, the Plaintiff developed a consequential aggravation or deterioration of pre-existing right knee osteoarthrosis due to a prior skiing injury and from ageing. Dr Porteous also considers that the Plaintiff suffered a consequential aggravation or deterioration of a pre-existing lumbar degenerative condition due to the altered biomechanics and forces through the lumbar area due to the left knee injury and symptoms.
4. Dr Home, who was called by the Defendant, disagrees with Dr Porteous with regards to the consequential injuries of the right knee and lumbar spine. Dr Home took the history that the Plaintiff had an existing right knee condition that required treatment including intra-articular injections. Dr Home does not consider that there was any evidence from the Plaintiff's history or the medical file that his right knee pain symptoms or underlying osteoarthrosis complaints were aggravated by the injury or during his period of recovery. He points out that there was no history of low back pain in the post-accident period.
5. It is accepted that the Plaintiff avoids deep crouching, can only kneel over the left knee whilst wearing knee pads, experiences symptom exacerbation with repetitive stair climbing but is able to climb stairs with normal cadence and can lift and carry weight over a short distance but avoided heavy lifting. The Plaintiff generally avoids work activities that involve heavy manual handling and stair climbing.
6. Dr Porteous was of the opinion that the Plaintiff was restricted functionally from heavy lifting, pushing, pulling or carrying; from moderate lifting, pushing, pulling or carrying from floor height; from kneeling and crouching; from frequently or constantly walking up and down steps or slopes and from walking on rough or uneven ground.
7. In other words, there is no issue between the medical experts but that the Plaintiff is significantly incapacitated, especially from a manual job that involves lifting, bending, crouching, etc.
8. Dr Porteous also considers that the Plaintiff was restricted from frequent and constant bending and constant or sustained sitting, due to his back condition. I accept that evidence which is entirely consistent with the Plaintiff's own evidence.
9. There is no dispute between the medical experts that the Plaintiff's restrictions are permanent.
10. There really is not very much issue between the medical opinions. Such issues as they are can be summarised as follows. As I have said, on behalf of the Plaintiff there is medical evidence which links some ongoing issues with the Plaintiff's right knee and lower back to the accident. The Defendant's medical evidence does not accept any connection between those symptoms, which are accepted and the accident, rather a skiing injury the Plaintiff suffered in his 20s, which was subsequently treated by an operation is said to be the cause of any ongoing problems in his right knee and the back issues are said to be unrelated. The Plaintiff's doctors think on balance that the change in the Plaintiff's gait caused by the significant disabilities to his left knee and ankle are the cause of his current problems in his back and right knee.
11. I should say that, in so far as the Plaintiff's ongoing disabilities and ability to work and enjoy his life to date and into the future, none of this really matters. The doctors all agree (and they agree to this leaving aside questions of back pain and right knee pain) that the Plaintiff has somewhere around a 50 to 60% ability to carry out his pre-accident work and that this will not improve. It is also agreed that it is probable that the Plaintiff will require surgery to his left knee sometime within the next 10 years and that he will remain significantly disabled from performing his pre-accident work and recreational hobbies for the rest of his life.
12. As far as the right knee and back issue is concerned, on balance I am not satisfied that these symptoms are referable to the Defendant's conduct and put them to one side. As far as whether the Plaintiff will need future surgery on his left knee, which is the Plaintiff's doctor's evidence, or whether there is a "50-50 percent chance" of that occurring, which is the Defendant's doctor's position, I think it is more likely than not that the Plaintiff will require future surgery which will occur sometime in about the next 7 to 10 years.
13. Dealing then with the damages claimed by reference to those findings.

Non-economic loss

1. The contest between the parties is that the Plaintiff contends that non-economic loss should be assessed at 36% of the most extreme case, whereas the Defendant contends it should be assessed at 30%.
2. I have been provided some comparative cases in this regard by various judges of this Court: Geoffrey Barker v A J Zanco Pty Ltd t/as Krack Solutions [2023] NSWDC 43; Gomez v Woolworths Group Limited [2023] NSWDC 221; Liccardy v Daniel Payne t/as Sussex Inlet Pontoons Pty Ltd and Anor [2022] NSWDC 246.
3. To my mind, the Plaintiff's injuries and ongoing disabilities are significant and have had and will continue to have a profound impact on his quality of life and ability to work. As I have said they have reduced his ability to earn income for the rest of his life by at least 50%. They have significantly curtailed his ability to enjoy various hobbies, which he keenly participated in before the accident, and have to an extent impacted his ability to help out around the house.
4. It is to the Plaintiff's credit that he is the very opposite of a malingerer. He has done everything he can to get on with his life and make the best of the situation.
5. Doing the best that I can and trying to compare the Plaintiff's injuries and disabilities to the worst imaginable case, but also paying regard to similar injuries and assessments in like cases, I think the Plaintiff's non-economic loss should be assessed at 34% of the worst case.

Past treatment expenses

1. These are agreed at $15,563.27.

Future treatment expenses

1. I allow the future treatment expenses as claimed, but limited to the cost of one future knee operation and one course of post-operative physiotherapy. I do not allow the claim for occupational therapy assistants.

Past economic loss

1. I am satisfied that the Plaintiff was earning on average $1260 net per week prior to the accident. Since then, he has earned on average $560 per week being a difference of $700.
2. At 223 weeks, that equates to damages for past economic loss of $156,100. I am satisfied this is an appropriate measure of this head of damages.
3. There is a claim for superannuation, albeit the facts are the Plaintiff has always been self-employed and has not been making any superannuation contributions. For that reason, I do not allow any amount for past superannuation.

Future economic loss

1. Using the same figures, that is a diminution of income at $700 per week until the Plaintiff reaches age 70, discounted for the present value of money, amounts to $330,225. In addition to that, there is the prospect acknowledged by all the doctors that arthritis may well occur and therefore his symptoms get worse, and there will be a period where he is off work for the future knee surgery. Again, in the circumstances I will not allow any amount for future superannuation loss, although I have built the possibility into the rounded-up figure which I have concluded is an appropriate award for future economic loss of $350,000. I have built into my consideration a discount of 15% for the vicissitudes of life.

Past domestic care and assistance

1. I am not satisfied that the Plaintiff has received anything other than the most minimal gratuitous domestic care to date. As I have said, he is to be commended for his efforts to continue to do as much as he possibly can around the house. True it is he cannot do the lawn mowing as he used to, but he has purchased a ride on mower, and he also does not climb ladders and clean gutters and the like.
2. I am not satisfied that the Plaintiff has made out a claim for past domestic care and assistance that meets the threshold prescribed by the legislation of a minimum of six hours per week for six months and allow no amount for this part of the claim.

Future domestic care and assistance

1. Again, on the evidence, I think it is highly unlikely that the Plaintiff will ever require any particular amount for future domestic care as a consequence of his disabilities. Accordingly, I allow no amount for this head of damage.

Summary of damages findings

1. In summary, I make the following findings as to damages: 1. Non-economic loss should be assessed at 34% of the most extreme case; 2. Past out-of-pocket expenses are allowed at $15,563.27; 3. Past economic loss is allowed at $156,100; 4. Future economic loss is allowed at $350,000; 5. Future treatment expenses are allowed as claimed, with the exception that I do not allow the cost of future surgery to the right knee or physiotherapy relevant to future surgery to the right knee; and 6. I award no amount for either past or future domestic care and assistance.

Conclusion

1. For those reasons, I: 1. Enter judgement in favour of the Plaintiff in an amount to be agreed or assessed. 2. Direct the parties to bring in short minutes of order consistent with these reasons. If there is any aspect of the quantification of the Plaintiff's claim that needs further consideration, I will hear the parties. 3. Prima facie the Plaintiff is entitled to an order for costs, but I will hear from any party if they wish a departure from that usual result.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 July 2024