PERSONAL INJURY - liability - workplace incident - construction site - fall from ladder - breach of statutory duty - Scaffolding and Lifts Regulation 1950 (ACT) reg 73(1) - where ladder not correctly fastened - all four defendants liable - liability of third defendant not excluded by subcontracting of responsibility - statutory duty of fourth defendant not discharged by delegating responsibility.

PERSONAL INJURY - liability - workplace incident - construction site - fall from ladder - negligence at common law - scope of duties of care - where several defendants - employer - project management principal - fellow independent contractors - breach of common law duties not considered.

PERSONAL INJURY - apportionment of damages between several defendants - where quantum of total damages agreed between the parties - application of Civil Law (Wrongs) Act 2005 (ACT) pt 2.5 in context of breach of statutory duty -statutory removal of common law defence of contributory negligence - s 19 definition of "wrong" - whether defence of contributory negligence remains available at common law - Piro v W Foster & Co Ltd [1943] HCA 32; (1943) 68 CLR 313 considered - pt 2.5 applicable to claims based on breach of statutory duty despite statutory abrogation - consideration of apportionment - relative negligence of defendants relevant.

CONTRACT LAW - employment contract - where contractual claim simply a claim that common law duty of care constituted a contractual term - not considered further.

CIVIL LITIGATION - jurisdiction, practice and procedure - Third Party Notices - where Third Party Notice issued to a party subsequently joined as a defendant - where no Notice Claiming Contribution or Indemnity filed - joinder of third party as a defendant does not, of itself, render Third Party Notice of no effect - Third Party Notice remains valid to claim contribution or indemnity.

Civil Law (Wrongs) Act 2002 (ACT), pt 2.5, ss 19, 20, 21, 102(2)

Law Reform (Miscellaneous Provisions) Act 1955 (ACT)

Law Reform (Miscellaneous Provisions) Amendment Act 2001 (ACT), sch 1; [1.8]

Scaffolding and Lifts Act 1912 (ACT)

Wrongs Act 1958 (Vic), s 25

Court Procedures Rules 2006 (ACT), rr 302, 319, 1616, sch 2 pt 2.1

Scaffolding and Lifts Regulation 1950 (ACT), ss 73(1), 80

Sappideen, C, and Vines, P, (eds) Fleming's The Law of Torts (Lawbook Co, 10th ed, 2011)

Amaca Pty Ltd v New South Wales [2003] HCA 44; (2003) 77 ALJR 1509

Bertram v Armstrong & Di Mamiel Constructions Pty Ltd (1978) 23 ACTR 15

Booksan Pty Ltd v Wehbe [2006] NSWCA 3; (2006) Aust Torts Reports 81-830, 68,279

Bourke v Butterfield & Lewis Ltd [1926] HCA 38; (1926) 38 CLR 354

Canberra Furniture Manufacturing Pty Ltd v White [1999] FCA 1810; (1999) 94 FCR 137

Carpet Trades (Aust) Ltd v Dalgety & Co Ltd [1952] VicLawRp 53; [1952] VLR 399

Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152

Davey v Skinner (1961) 61 SR (NSW) 648

Fatur v IC Formwork Pty Ltd [2000] ACTSC 14; (2000) 155 FLR 70

Fatur v IC Formwork Services Pty Ltd and Anor [No 2] [2000] ACTSC 110; (2000) 158 FLR 136

French v QBE Insurance (Aust) Ltd (2011) 58 MVR 215

H C Buckman & Son Pty Ltd v Flanagan [1974] HCA 30; (1974) 133 CLR 422

Hollis v Vabu Pty Ltd [2001] HCA 44; (2001) 207 CLR 21

Horkin v North Melbourne Football Club Social Club [1983] VicRp 12; [1983] 1 VR 153

Ilvariy Pty Ltd v Sijuk [2011] NSWCA 12

Jaensch v Coffey [1984] HCA 52; (1984) 155 CLR 549

Kondis v State Transport Authority [1984] HCA 61; (1984) 154 CLR 672

Leighton Contractors Pty Ltd v Fox [2009] HCA 35; (2009) 240 CLR 1

Lewis v Denye [1940] AC 921

Miller v Paua Nominees Pty Ltd [2004] WASCA 220

O'Neill v Cowan's Scaffolding Hire Service [1983] 2 Qd R 40

Piro v W Foster & Co Ltd [1943] HCA 32; (1943) 68 CLR 313

Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16

Stuart v Kirkland-Veenstra [2009] HCA 15; (2009) 237 CLR 215

Sweeney v Boylan Nominees Pty Ltd [2006] HCA 19; (2006) 226 CLR 161

Tame v New South Wales [2002] HCA 35; (2002) 211 CLR 317

USP Needham Australia Pty Ltd v The Victorian Arts Centre Building Committee [1983] VicRp 8; [1983] 1 VR 79

Voli v Inglewood Shire Council [1963] HCA 15; (1963) 110 CLR 74

AND: BELCONNEN CONCRETE PTY LTD (ACN 008 555 360),

AND: ARTWICK PTY LTD (ACN 094 811 293), CLICKFORT PTY LTD (ACN 094 811 284) AND ROVERA SCAFFOLDING PTY LTD (ACN 095 140 819) TRADING AS ROVERA SCAFFOLDING

1. The parties are to bring in short minutes of order to give effect to these reasons.

1. Until its sale to its present owners, the Canberra Airport was a busy regional airport on the outskirts of northern Canberra, surrounded by agriculture and horticulture. It is now a commercial and retail hub, the workplace of many Canberrans, and called the Canberra International Airport.

2. There was enormous construction of offices and retail premises and, indeed, a new terminal, fitting for the heart of enterprise it has now become. Construction, of course, brings its own issues and construction sites are relatively dangerous workplaces: Ilvariy Pty Ltd v Sijuk [2011] NSWCA 12 at [19]. This case involves a workplace incident resulting in personal injury during the construction of one of the buildings on this site.

3. On 23 January 2003, the plaintiff, Angelo Stojkoski, was working for his employer, the first defendant, Belconnen Concrete Pty Ltd, as a concreter, on a building site on land of the Canberra International Airport. He was working on a construction project which has been described in the proceedings as "Building 6".

4. While he was descending a ladder from some scaffolding around formwork into which concrete had been poured, the ladder slipped and he fell some two metres to the ground (the workplace incident).

5. Mr Stojkoski suffered injury to his right knee and left shoulder and has, apart from a couple of hours, not worked since. He now claims damages and compensation for that injury.

6. Mr Stojkoski bases his claim both on negligence of the defendants at common law and also on breaches of the Scaffolding and Lift Regulation 1950 (ACT).

7. On 29 January 2004, Mr Stojkoski commenced these proceedings for the recovery of damages to compensate him for the personal injuries he has suffered, claiming that his employer, Belconnen Concrete Pty Ltd, was negligent and breached its statutory duties.

8. On 11 January 2005, his employer joined the second defendant, now called

CCB (ACT) Pty Ltd, the principal contractor for the construction project, as a third party but later Mr Stojkoski was permitted to join it as a defendant, the second defendant. The second defendant was, at the time of the incident, the project manager overseeing the project on which the first defendant was engaged.

9. On 27 July 2006, the second defendant joined Rovera Scaffolding Pty Ltd, the supplier of scaffolding to the project, as the first third party. Rovera Scaffolding was contracted to the second defendant to supply and construct scaffolding on the project which included perimeter scaffolding and also scaffolding in the works themselves.

10. On 30 March 2007, the second defendant joined as a second third party Ironbat Pty Ltd, a subcontractor to the third defendant for the erection of the scaffolding.

11. On 22 October 2007, the plaintiff was given leave to join the first third party as the third defendant and the second third party as the fourth defendant.

12. On 28 October 2009, the parties consented to the name of the third defendant being amended to Artwick Pty Ltd, Clickfort Pty Ltd and Rovera Scaffolding Pty Ltd trading as Rovera Scaffolding.

13. As can be seen from the above outline, the second, third and fourth defendants were all first joined as third parties and Third Party Notices were served. Once they were joined as defendants, each of them issued Notices Claiming Contribution and Indemnity under r 319 of the Court Procedures Rules 2006 (ACT). It appears that each of the defendants were seeking contribution or indemnity from each other defendant. Thus, the first defendant issued such notices to the second defendant (20 October 2006), the third defendant (7 July 2008) and the fourth defendant (7 July 2008). The third defendant issued notices against the first defendant (10 July 2008), the second defendant (10 July 2008) and the fourth defendant (7 September 2009). The fourth defendant claimed against the first defendant (10 July 2008), the second defendant (10 July 2008) and the third defendant (15 September 2009). The second defendant, however, only issued such a notice to the first defendant (12 December 2006).

14. The making of a third party into a defendant does change relations within the proceedings. For example, there is, thereafter, issue joined with the plaintiff and the new defendant, who can then participate fully in the proceedings with the plaintiff, unlike the third party: Carpet Trades (Aust) Ltd v Dalgety & Co Ltd [1952] VicLawRp 53; [1952] VLR 399. A useful analysis of the position is set out in USP Needham Australia Pty Ltd v The Victorian Arts Centre Building Committee [1983] VicRp 8; [1983] 1 VR 79. Although I can find no authority, it does not seem to me that when the order is made making a third party a defendant, it of itself renders the Third Party Notice a nullity or of no effect.

15. In O'Neill v Cowan's Scaffolding Hire Service [1983] 2 Qd R 40, Master Lee QC had to consider the nature of a Notice Claiming Contribution and Indemnity. The learned Master noted, as is the same with rr 302 and 319, that the conditions entitling both the Third Party Notice and the Notice Claiming Contribution and Indemnity were identical. The fundamental distinction was that the former was served on a person not a party, whereas the latter was served on a person already a party and, the Master found, the effect of service of each was similar. In that case, the Master held that, even after a defendant on whom a Notice of Claiming Contribution and Indemnity had been served had been struck out of the action by the plaintiff, the former defendant "remains a party to the action by virtue of the proceedings consequent upon the notice". Accordingly, in my view, the two Third Party Notices issued by the second defendant to the third and fourth defendants remain valid to claim contribution or indemnity from those parties should the second defendant be held liable to the plaintiff.

16. I shall refer to the parties as follows. I shall refer to the plaintiff as "Mr Stojkoski" and the first defendant as "Belconnen Concrete". The second defendant I shall refer to as "CCB", and the third defendant will be called "Rovera". The fourth defendant will be referred to as "Ironbat".

17. Mr Stojkoski was born 1950 in Macedonia. He left there and arrived in Melbourne, Australia, in 1970. Initially he worked in factories there but, in 1973, he came to Canberra. Since coming to Canberra, he has been engaged in labouring in the building industry and, particularly in concreting. He has, clearly, become highly competent as a concreter.

18. He gave evidence before me that he has worked for Belconnen Concrete for almost five years though that was not continuously.

19. He told me that when he was not employed by Belconnen Concrete he would be able to obtain other jobs, often private jobs. While there may have been a day or so when he was out of work in such circumstances, he was, he said, almost continuously employed.

20. In 1975 he had an operation to remove a tumour from his brain.

21. He owns his own home in Queanbeyan but there is some building work still to be completed, namely, some mortar work and, in particular, the work around the windows between the brick sill and the window.

22. Prior to the workplace incident, he worked in the garden, mowing lawns and caring for the garden.

23. Prior to the workplace incident, his general health, clearly apart from the period when a tumour grew in his brain, was good and he said that he had no problems whatsoever. He said to me that he had not lost work time over illness though he seemed to imply that he took sick leave from time to time in order to avail himself of that benefit. He described it as "used only that which everybody uses".

24. He did report one other injury to his right knee in December 2002. He had an x-ray to the knee and attended on his general practitioner at Queanbeyan. He had no other treatment for it and lost only two days work as a result of it. Until the workplace incident, he had no further trouble with the right knee which appears, thereafter, to have been asymptomatic.

25. In September 2002, Canberra International Airport Pty Ltd, the owner and operator of the Canberra International Airport, engaged CCB (then known as Construction Control Pty Ltd) as project and construction manager for a project, being the erection of two "4 storey plus mezzanine office developments (Brindabella 6 & Brindabella 7)" to be sited on what is called the Brindabella Business Park - a development at one side of the airport property.

26. CCB then contracted with Belconnen Concrete to provide the concreting required in the project, including the footings, the slabs and columns between the storeys.

27. CCB also contracted Rovera to provide scaffolding for the project. This included perimeter scaffolding to the site but also scaffolding to support the pouring of the slabs and the construction program. In particular, this included the erection of scaffolding around the top of the formwork for the concrete columns and the necessary access to that scaffolding by ladders.

28. While Rovera contracted to provide the scaffolding and the labour, it sub-contracted to Ironbat the provision of the labour for the erection, maintenance and dismantling of the scaffolding. It provided the materials. It had, however, a general duty of responsibility, since it was the contractor to CCB and, for example, participated in the weekly "safety walks" around the project site and maintained a general responsibility for the scaffolding part of the project.

29. On 23 January 2003, Mr Stojkoski and two other employees of Belconnen Concrete, Mr Paul Vince and Mr Patrick Bollard, were detailed to work at Building 6 in Brindabella Business Park.

30. Mr Bollard and Mr Vince were then aged in their early 20's and significantly less experienced than Mr Stojkoski. For example, Mr Bollard had about two years experience as a concreter, though he had been working for Belconnen Concrete for about six months. He was not, therefore, a complete novice and knew, for example, that it was inappropriate for him to interfere with or move scaffolding. Mr Vince had started with Belconnen Concrete at about the same time as Mr Bollard.

31. It appears that all three had undergone an appropriate induction in respect of the project site and had worked on that site before 23 January 2003. Mr Robert Bell, foreman on the site, employed by CCB, had known Mr Stojkoski for several years.

32. The building on which the three were to work, Building 6, was constructed in three floors with a mezzanine and each floor was held up by columns. Those columns were created by concrete filling formwork. The columns had to be filled with the concrete from the top and, accordingly, scaffolding was erected around the formwork with a work platform at the upper end. It appears that the work platform was constructed at a height of about 1.8m to 2m from the concrete floor below (although the estimates in evidence varied between 1.5m and 2.5m). The scaffolding was of steel and the platform on which the concreters worked was of steel decking with wooden lapboards. There was a "handrail system" on the perimeter of the work platform.

33. The concreters would climb to the work platform at the top of the formwork, approximately at the top where the column head was, and the concrete trucks would bring the concrete which would then be pumped through a boom to which was attached a hose. Mr Vince would direct the hose into the formwork.

34. Mr Stojkoski operated what is known as a "vibrator". That is a device operated by a petrol engine, to which is attached a hose and a needle-like end to insert into the concrete, to consolidate the freshly poured concrete so that it fills all the space within the formwork, releasing trapped air and excess water. It is a large machine, weighing about 20kgs, and its use created a complete column.

35. On 23 January 2003, Mr Stojkoski, with Messrs Bollard and Vince, worked on another site for Belconnen concrete in the morning and then arrived, independently, at the project site.

36. When they arrived at the project site, the concrete pump truck was already there, but the truck containing concrete had not yet arrived. They spoke to Mr Bell, who was, at the time, it seems, with another construction worker of CCB, Christopher Davis, who was also the site First Aid Officer.

37. There is some suggestion that they also spoke to an employee of Ironbat, but I will deal with that later.

38. Mr Bell told them that the concrete was to be poured into columns on the Mezzanine level above level 3. The columns were apparently to hold the roof. The formwork and necessary scaffolding had been erected.

39. The work platform on the scaffolding around each column was to be reached by means of a ladder. All the evidence was that it was not the job of the concreters to affix the ladder to the scaffolding but that was the job of scaffolders or form workers.

40. There is evidence that Michael Turnbull, a scaffolder with Ironbat, was also present at this conversation and said to Mr Stojkoski words to the effect of "I'm here to fix off the ladders and to install the ladders. No touching any scaffolding until you come and see me". Mr Stojkoski could not remember this conversation, but he did know that he was not to interfere with or move scaffolding.

41. The concrete truck arrived at about 1.50 pm and the three Belconnen Concrete employees went up to the Mezzanine level. It is uncertain whether the pump operator joined them or stayed with the pump truck on the ground. It was also a little unclear whether there were other tradespeople on the Mezzanine level at the time.

42. It was, of course, important that the ladders be securely fastened to the scaffolding and at the base. Each ladder, as I saw from photographs, is placed at right angles to the scaffolding so that it can be secured to the scaffolding at various points. At the top, it is secured to a "hop up bracket".

43. The evidence from Mr Turnbull of how the ladders were erected was as follows:

MR LOEWENSTEIN: And how did you go about doing that erection with the ladders?---They were secured by - on hop-ups, up the side.

HIS HONOUR: From on what?---A hop-up bracket.

MR LOWENSTEIN: What is a hop-up bracket?---It's a tiny yellow component, that fits - actually fits into the side of the scaffold.

HIS HONOUR: Is it a bracket on the ladder, or on the scaffold?---No, it's actually - that's a separate component, it actually attaches to the scaffold itself.

Attaches to the scaffold?---Yes.

And then you affix the ladder to that?---And the ladder is fixed to that.

...

MR LOWENSTEIN: And how do you fix those?---It was lashed in three places.

Which places?---Two at the top and one at the bottom ledger on the scaffold, to avoid movement.

Can I show you two objects. Can you inform his Honour what those objects are?---These are wire nips, which are used for cutting and twitching of the wire, and that is the wire. The wire was always doubled over, never in a single lash and the only way that can be cut is with a pair of them or a pair of pliers.

Could it be cut with any other object?---With a metal object, if you bashed it hard enough, or hit it hard enough, yes.

HIS HONOUR: With a hammer?---A hammer, a claw hammer, keep bashing it until it sags and it'll separate, yes.

MR MEAGHER: And how was it - where was the ladder placed in relation to the platform?---Generally fixed to the outside of the main structure of the scaffold.

And apart from the ties that you've explained, is there a bracket or some other objects on the column?---There's several options, being a two-bar hop-up, what we call a two board or a three board hop-up bracket, or a transom, a ledge or something of those nature.

Just explain what that is?---It would come off the side of the main support which is called a standard, and the ladder would be fixed to that, and then you step across onto the platform.

And as best you understand it, how many places is the ladder fixed to the scaffolding?--- Generally three, top, middle, bottom.

And does the process of fixing it, involves - to fix it going up the ladder and tying the bottom one and then going up - - -?---To the middle and then to the top and then reverse that process.

And reverse if you're undoing it?---Yes.

And in order to undo it, do you need any particular tools?---You either need a shifter, a hammer or what we call nips, which cut the wire.

45. When they commenced work, Mr Vince climbed the ladder to the work platform at the top of the first column. He found that the hose would not reach to the formwork and so they decided to move to a second column.

46. Mr Vince came down the ladder and Mr Stojkoski and Mr Bollard proceeded to move the vibrator, which was quite a heavy machine, to the next column.

47. Unfortunately, there were apparently not enough ladders on site for the scaffolder to have attached a ladder to each of the columns into the formwork for which the concrete was to be poured on that day. The ladders, it appears, had been brought up from the floor below under the direction and with the assistance of Mr Bell earlier that day and fixed by Mr Turnbull.

48. Mr Stojkoski emphatically gave evidence that the ladder had to be moved from the first column to the next one. He knew that concreters should not do so. He says he did not see who moved the ladder. It was not he or Mr Bollard as they were moving the vibrator. He did not think it was Mr Vince, as he was giving directions to the concrete pump operator. Nor did Mr Bollard see anyone move the ladder. Mr Bell, Mr Davis and Mr Turnbull each denied that they had moved it.

49. As Mr Bell explained, it is not a lengthy process to relocate a ladder. He explained:

MR MEAGHER: And what's involved in moving the ladders?---The ladder itself is a pretty quick process of either undoing a - a clip or undoing or cutting tie wire. In some cases you may shoot a timber baton down the bottom of them as well. So, the ladder themselves is a pretty quick process to - to relocate.

So to move, if it's already on a scaffold, to move it, what do you have to do?

---The process of removing a ladder to another one?

Yes?---You would either undo the bolts, there'd be someone standing down the bottom to hold the ladder who's a scaffolder, whoever come from the top down, undo the bolts, undo the tie wire, and relocate it, go through the reverse process to install the ladder for the next scaffold.

50. As noted above (at [43]), Mr Turnbull pointed out that tools were required for this process. Neither Mr Stojkoski, nor his fellow employees, Mr Bollard and Mr Vince, had such tools.

51. They moved quickly to the next column as, of course, a concrete pour has to be completed fairly quickly before the concrete sets. This pressure no doubt contributed to them not noticing what happened with the ladder.

52. When Mr Stojkoski and Mr Bollard reached the second column, a ladder was already in place and Mr Vince had already climbed the ladder to the work platform. When the vibrator was moved to the foot of the ladder, Mr Bollard then climbed half way up the ladder and Mr Stojkoski handed the vibrator engine to him. He, in turn, handed it up to Mr Vince.

53. Mr Bollard then climbed the ladder to the work platform followed by Mr Stojkoski. The column was then filled, Mr Vince using the hose to pour the concrete into the formwork to construct the column, Mr Stojkoski operating the vibrator and

54. When the column was filled, Messrs Vince and Bollard descended the ladder while Mr Stojkoski finished off the top of the column by smoothing the concrete.

The workplace incident - Mr Stojkoski's fall from the ladder

55. Mr Stojkoski then proceeded to descend from the scaffolding platform. As he did so, he fell. He described it as follows:

MR PARKER: Now, what happened when you climbed down the ladder?

---With my right foot and with my hand holding on with the ladder. I don't know, when I put my right foot on the ladder, the ladder just swivelled around, moved around. And after that I - so, I tried to do to hold myself onto the scaffolding, but I couldn't do that. And after that, I don't recall anything - what happened after that.

All right. And what do you next - when you next remembered something?

---When I regained consciousness, I just remember that I saw people around, that everybody was around me, the foreman was there, then one - a young man - one young man from the first aid put me some bag with the ice, I think on the neck. I don't know, I don't know what else happened, no.

Did you notice anything on the concrete floor where you were lying?

---I noticed the tracks from the ladder that moved on the side.

All right. What do you mean by 'tracks'?---The lines made by the moving ladder in the concrete markings.

Markings on the concrete floor?---Yes.

56. Mr Bollard said he heard "a bang", turned around, and saw that the ladder had slipped out from the scaffolding and was suspended off the ground. He said that one of the rungs must have caught on a piece of scaffolding and Mr Stojkoski was caught by his right leg and his head was on the ground. Mr Bell described what he saw as Mr Stojkoski "in a crouched position and one of his legs ... was within the bottom couple of rungs of the ladder". Mr Davis said he saw the ladder "half on the scaffold".

57. As the First Aid Officer, Mr Davis took Mr Stojkoski down to the ground, to the first-aid office and put ice on Mr Stojkoski's knee. He completed a "Site Work Injury/Work Related Illness Occurrence Report". The time of the injury was entered as 2.05 pm.

58. It showed the type of incident as "Fall of person" and the incident class as "Minor injury", with the outcome "Hurt leg, sent to see doctor". The details of the accident were stated as "ladder sliped [sic] from underneath and fell aprox [sic] 1-2 meters [sic]".

59. Mr Stojkoski said that he was in shock and felt wobbly and dizzy, but, after about half an hour, he felt sufficiently able to go home. He had a shower but then went to the Queanbeyan Hospital because his leg started to get swollen and he felt pain.

60. At the hospital he was seen by the doctor on duty at the Hospital at 3.30 pm and was given some pain killers.

61. On 25 January 2003, Mr Stojkoski went to see his general practitioner, Dr Sukuma.

62. Dr Sukuma gave him a week off and prescribed pain killers. At the end of that week, Mr Stojkoski attempted to return to work with Belconnen Concrete but he found he was in so much pain that he had to leave after a couple of hours. He has not returned to work since then.

63. Dr Sukuma organised x-rays for his left shoulder and his right knee and an ultrasound for his left shoulder.

64. In February 2003, Dr Sukuma referred Mr Stojkoski to Dr Warfe at the Preventive Medicine and Rehabilitation Centre at John James Hospital. Dr Warfe arranged for him to have physiotherapy for his shoulder and for his knee. He also referred him to Dr Aubin, an orthopaedic surgeon.

65. Dr Aubin operated on his knee on several occasions after taking an MRI scan in April 2003.

66. On 28 July 2003, Dr Aubin conducted an arthroscopy under general anaesthetic. Unfortunately that did not assist Mr Stojkoski's knee and he continued to experience pain.

67. On 28 September 2004, Dr Aubin arranged for a further MRI scan and conducted another arthroscopy on 19 November 2004. Again, this provided no relief.

68. On 7 March 2006, Dr Aubin undertook a total right knee replacement and a month later under general anaesthetic performed a manipulation of his right knee. This, however, did not improve his right knee at all. He has been asked to consider a further operation in due course.

69. Dr Sukuma also referred Mr Stojkoski to Dr Colin Andrews because of the headaches that Mr Stojkoski was experiencing. Dr Andrews prescribed Botox injections which he delivered. Mr Stojkoski had six or seven injections on the crown of his head.

70. After a week or so, the headaches returned and Mr Stojkoski continues to have headaches.

71. Dr Sukuma also referred Mr Stojkoski to Dr Tania Lioulios, Psychologist, because he was having psychological difficulties. He described himself as very nervous, angry and cranky, shouting around the house and being depressed.

72. He saw Dr Lioulios on 24 June 2003 and a number of occasions after that for about

18 months to two years. While he was a little negative about the assistance Dr Lioulios provided, he did say that after a while he would recall some of the words she said and she gave him a CD to listen to. He said that he was still rather cranky, talking too much and arguing because of the nervousness following his pain.

73. I do not need to go into further details about his injuries, since the parties have agreed that, subject to any reduction for contributory negligence, the damages to which Mr Stojkoski is entitled amount to $705,000.00 at the date of the hearing.

74. Mr Stojkoski's claim against all defendants was made on two bases, namely, common law negligence and breach of statutory duty. He also claimed against his employer, Belconnen Concrete, on the basis that it breached the contract of employment under which he was engaged.

75. So far as the claims in negligence are concerned, liability depends on three matters:

a. there must be a relevant duty of care owed by the defendant to Mr Stojkoski to take reasonable care for his safety and not to harm him;

b. there must be a breach of that duty in that the doing of a relevant act or thing or the doing of it in a relevant manner was, in the light of all the circumstances, inconsistent with what a reasonable person would do in response to the foreseeable risk; and

c. there must have been damage caused by the defendant's action.

See Jaensch v Coffey [1984] HCA 52; (1984) 155 CLR 549 at 585-6.

Determining the scope of the duties of care in relation to the several defendants

76. There are, in respect of some of the defendants, special rules relating to the identification and imposition of a duty of care.

77. It is now settled law that an employer owes a personal, non-delegable duty to its employees to take all reasonable care to institute a safe system of work and to ensure that it is carried out, so that its employees will not be exposed to unnecessary risk. See Kondis v State Transport Authority [1984] HCA 61; (1984) 154 CLR 672 at 689 per Murphy J. Thus, as French CJ, Gummow, Hayne, Heydon and Bell JJ said in Leighton Contractors Pty Ltd v Fox [2009] HCA 35; (2009) 240 CLR 1 at 12; [21]:

This is a more stringent obligation than a duty to take reasonable care to avoid foreseeable risk of injury to a person to whom a duty is owed. While an employer is not vicariously liable for the negligent conduct of an independent contractor, it may incur liability where the negligent conduct occasions injury to its employee. This is because it will have failed to discharge the special duty that it owes to its employees to ensure that reasonable care be taken, whether by itself, its employees or its independent contractors, for the safety of its injured employee [Kondis v State Transport Authority (1984) 154 CLR 67 at 686-7 per Mason J; Burnie Port Authority v General Jones Pty Ltd [1994] HCA 13; (1994) 179 CLR 520].

78. The contractual claim really amounts to no more than claiming that this duty of care is a term of the contract of employment and a breach of the duty results in both tortious and contractual liability.

79. That duty will, of course, be discharged for a company, as is Belconnen Concrete, by its employees and, will be liable if the duty is breached by one or more of them for whose actions it is liable vicariously: Hollis v Vabu Pty Ltd [2001] HCA 44; (2001) 207 CLR 21.

80. As the principal on the project, CCB is the body with ultimate responsibility for the project site and the safety on it. The duties of such a principal have been carefully set out authoritatively by Brennan J in Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 at 47-8 as follows:

An entrepreneur who organises an activity involving a risk of injury to those engaged in it is under a duty to use reasonable care in organising the activity to avoid or minimize that risk, and that duty is imposed whether or not the entrepreneur is under a further duty of care to servants employed by him [sic] to carry out that activity. The entrepreneur's duty arises simply because he is creating the risk and his duty is more limited than the duty owed by an employer to an employee. The duty to use reasonable care in organizing an activity does not import a duty to avoid any risk of injury; it imports a duty to use reasonable care to avoid unnecessary risks of injury and to minimise other risks of injury. It does not import a duty to retain control of working systems if it is reasonable to engage the services of independent contractors who are competent themselves to control their system of work without supervision by the entrepreneur. The circumstances may make it necessary for the entrepreneur to retain and exercise a supervisory power or to prescribe the respective areas of responsibility of independent contractors if confusion about those areas involves a risk of injury. But once the activity has been organized and its operation is in the hands of independent contractors, liability for negligence by them within the area of their responsibility is not borne vicariously by the entrepreneur. If there is no failure to take reasonable care in the employment of independent contractors competent to control their own systems of work, or in not retaining a supervisory power or in leaving undefined the contractors' respective areas of responsibility, the entrepreneur is not liable for damage caused merely by a negligent failure of an independent contractor to adopt or follow a safe system of work either within his area of responsibility or in an area of shared responsibility. (citation omitted)

See, also, Ilvariy Pty Ltd trading as Craftsman Homes v Sijuk at [19] and [21].

81. As noted above (at [79]), that duty will be discharged for a company, as is CCB, by its employees, for whose actions it will be liable. So far as independent contractors are concerned, it is only in limited circumstances that they can render the company liable vicariously. See also Sweeney v Boylan Nominees Pty Ltd [2006] HCA 19; (2006) 226 CLR 161 at 173; [33]; Leighton Contractors Pty Ltd v Fox at 25; [60].

82. There are no special rules relating to the duty that fellow independent contractors owe to a person such as Mr Stojkoski; the relationship is governed by the ordinary rules of negligence actions, namely, that there must be a relevant duty of care owed by these defendants to Mr Stojkoski to take reasonable care for his safety, namely, following Jaensch v Coffey, there must be such proximity between the defendants or any of them and Mr Stojkoski that it is appropriate that they be held liable for their failure to guard against a reasonably foreseeable risk of harm to him.

83. It is now beyond doubt, as Dixon CJ pointed out in Voli v Inglewood Shire Council [1963] HCA 15; (1963) 110 CLR 74 at 85, that a contractor has a duty beyond the contractual duty to the other party to the contract, and it is owed to persons unknown to him, her or it whose only relationship to the contractor is that it is reasonably foreseeable they may be injured as a result of the contractor's failure to take care.

84. The precise limits of the duty are not easy to articulate. Indeed, it is clear from the judgment of the High Court in Tame v New South Wales [2002] HCA 35; (2002) 211 CLR 317 that the touchstone of such liability is reasonableness.

85. It seems to me clear beyond argument that a scaffolder owes such a duty to a person whom the scaffolder knows will use the scaffold for the purpose for which it was erected. See Miller v Paua Nominees Pty Ltd [2004] WASCA 220.

86. In the light of my findings below, it is not necessary for the purpose of responsibility to Mr Stojkoski to consider whether any of the defendants breached their common law duty to him.

87. The second head of liability alleged in the plaintiff's claims was a breach of statutory duty by all the defendants. Such a claim is a claim in tort, though it is distinct from the tort of negligence: Stuart v Kirkland-Veenstra [2009] HCA 15; (2009) 237 CLR 215 at 259; [130] per Crennan and Keefel JJ.

The Scaffolding and Lifts Regulation

88. The statute alleged to have been breached was the Scaffolding and Lifts Regulation 1950 (ACT) made under the Scaffolding and Lifts Act 1912 (ACT). The plaintiff relied on the following particular sections of the Regulation:

73(1) Any person who directly or by his or her servants or agents (including every independent contractor from time to time engaged in that work) carries out any building work shall take all measures that appear necessary or advisable to minimise accident risk and to prevent injury to the health of persons engaged in the building work and for this purpose, without limiting the generality of the foregoing, the person shall -

(a) provide suitable and safe scaffolding, which shall conform to the requirements of this regulation, for all work that cannot be done safely by a person standing on permanent or solid construction, except when the work can be done safely from ladders constructed in conformity with the provisions of this regulation; and

(b) provide and maintain safe means of access to every place where any person has to work at any time; and

...

80 To be securely fixed

(6) Every ladder shall so far as practicable be securely fixed so that it cannot move either from its top or from its bottom points of rest.

(7) If it cannot be so securely fixed it shall where practicable be securely fixed at the base or if such fixing at the base is impracticable a person shall be stationed at the base of the ladder to prevent slipping.

...

Footings for stepladders

(10) A stepladder shall be set up on a level and firm footing and shall not be stood on loose bricks or other loose packing.

...

Height above landings

(12) Ladders used for the purposes mentioned in subsection (3) shall rise to a height of at least 3 feet 6 inches above the place of landing for persons using the ladders.

89. The plaintiff also claimed that sub-ss 73(1)(c)-(f) of the Regulation had been breached. I am not satisfied that they are relevant to the factual circumstances here encountered. I do not set them out or consider them further.

90. There is no doubt that what was happening on the project site was building work as defined in the Dictionary to the Scaffolding & Lifts Act. A distinction is made in s 73(1) between those who carry out building work and those who are engaged in building work. In H C Buckman & Son Pty Ltd v Flanagan [1974] HCA 30; (1974) 133 CLR 422 at 445, Jacobs J explained:

The obligation is imposed on persons carrying out building work. These words envisage a degree of control over the particular building work and are used distinctly from 'engaged in building work', words which do not contain any element of control or direction of the work. The obligation is an absolute one and cannot as an obligation be delegated to another, whether that other be an employee or sub-contractor.

91. I have no doubt that each of the defendants were companies that carried out building work. No submissions were made to the contrary.

92. For the purpose of s 73(1)(b), I note that, as relevant here, "access" has been accepted by Davies J in Bertram v Armstrong & Di Mamiel Constructions Pty Ltd (1978) 23 ACTR 15 at 21 as including "egress". I respectfully agree. Thus, descending a ladder from scaffolding on which a person had engaged in building work would attract the operation of s 73(1)(b).

93. Statutory provisions such as those relied on by Mr Stojkoski entitle him to a private right of action for recovery of damages for the injuries suffered when the statutory provisions were breached. It has long been held that such provisions grant such a right. See, for example, Davey v Skinner (1961) 61 SR (NSW) 648.

94. While there are some circumstances where liability might be denied, such as where there was co-extensive liability between plaintiff and defendant (Canberra Furniture Manufacturing Pty Ltd v White [1999] FCA 1810; (1999) 94 FCR 137 at 144; [19]), there is nothing like that here.

95. Indeed, I respectfully adopt what Miles CJ said about the Regulation in Fatur v IC Formwork Pty Ltd [2000] ACTSC 14; (2000) 155 FLR 70 at 75; [21]:

Under reg 73 the duty is cast upon any person who carries out building work. The duty is directed at the protection of persons engaged in the building work. The exact scope of the duty is prescribed by reg 73(2) is to provide and maintain safe means of access to every place of work in which any person has to work at any time. There is nothing that restricts the scope of the duty to what is practicable or reasonable. A means of access is unsafe if it is a possible cause of injury to anybody acting in a way that a person may be reasonably expected to act in circumstances which may reasonably be expected to occur: Trott v W E Smith (Erectors) Ltd [1957] 3 All ER 500; [1957] 1 WLR 1154; Brown v National Coal Board [1962] AC 574 at 596 per Lord Denning.

96. In my view, there is clear liability for breach of the statutory duties cast upon each of the defendants to Mr Stojkoski as set out above (at [87]) for the injuries he has suffered. The liability does not depend on negligence by any of the defendants. So much is clear from Fatur v IC Formwork Services Pty Ltd and Anor [No 2] [2000] ACTSC 110; (2000) 158 FLR 136 (Fatur [No 2]).

97. Rovera and Ironbat sought to exclude themselves but, in my view, their attempt was unsuccessful.

98. Rovera was the subcontractor to CCB for the scaffolding. That it sub-contracted the labour involved in erecting the scaffolding did not relieve it of liability, though it may have been indemnified by its subcontractor contract. It was, in any event, clear that Rovera knew and accepted its responsibility (the failure to do so not relieving it of liability) in that its director, Mr Savage, would participate in "safety walks" that were conducted on a weekly basis. Further, his inspections, he said in evidence, included matters not only directly relevant to these proceedings, but which included the erection of scaffolding not merely its supply, such as whether ladders were actually tied correctly.

99. As to Ironbat, it submitted that Mr Turnbull had left the site at the end of his shift, as he was entitled to do, and had expressly charged Messrs Bell and Davis, who accepted the charge, to ensure that there was proper movement of any ladders. Again, that does not discharge Ironbat's liability though it may affect questions of indemnity.

100. I am, however, not satisfied that this was a proper discharge of Ironbat's responsibility.

101. Mr Turnbull was aware that there was to be a concrete pour on the Mezzanine level. He had fixed ladders for that purpose that morning. He knew that there was one less ladder available than there were columns to be poured. He knew, therefore, that there was a ladder to be moved. As an experienced building worker, he must have known that once the concrete pour started, it would almost certainly have to proceed with due expedition and until it was finished.

102. Knowing these things, he left the site. He says he left at the end of his shift, but he was adamant that his shift ended at 2.30 pm. He was, he said, not on site when Mr Stojkoski was injured. Indeed, in the circumstances, it would have been bizarre if he had not been on the Mezzanine level when the accident happened, as he knew that there was a ladder short and one had to be moved during the pour.

103. In those circumstances, I accept he was not on site when Mr Stojkoski fell from the ladder.

104. There are two contemporaneous pieces of evidence to help identify when the fall happened: the Accident Report which gave the time as 2.05 pm and the Queanbeyan Hospital Report which stated that Mr Stojkoski presented himself at 3.30 pm. Both are consistent and, in my view, only consistent with the incident occurring at or about 2.05 pm. That means that the pour started before 2.00 pm and, indeed, the need for the move of the ladder arrived before 2.00 pm. Mr Turnbull's shift had not then finished.

105. That he delegated the task to others is relevant, but he must have known that, unlike his responsibility for scaffolding and ladders, both Messrs Bell and Davis had other responsibilities as well. Mr Bell, after all, was foreman on the site.

106. I do not consider that any of the circumstances, as I have outlined them, relieve Ironbat of liability for breach of the relevant sections of the Scaffolding and Lifts Regulation.

107. Since I have found liability to the plaintiff by all defendants on the basis of a breach of statutory duty, I do not have to consider whether the plaintiff contributed to his own injury. Section 102(2) of the Civil Law (Wrongs) Act 2002 (ACT) is determinative of the issue. It provides:

However, if the claimant suffered personal injury and the wrong was a breach of statutory duty, the damages recoverable by the claimant for the personal injury must not be reduced because of the claimant's contributory negligence.

108. Nevertheless, since the matter may not be finally resolved by my decision, I will briefly state that I do not consider that Mr Stojkoski was contributarily negligent. It may be a counsel of perfection to say that a concreter should check that the ladders he or she uses have been correctly and firmly tied. I am not at all sure that this is reasonably required. There were, on this site, certified scaffolders whose responsibility it was to set up the ladders as well as the other scaffolding. In my view, Mr Stojkoski was entitled to rely on this. He also knew that it was not the job of concreters to move ladders and that they should not interfere with them.

109. In the instant case of the ladder on the second column - the one which was poured - he was aware, before he attempted the descent which led to his injury, that his two fellow employers had ascended and descended the ladder. In addition, the 20kg vibrator had been passed up to the work platform via Mr Bollard who was half-way up the ladder. Mr Stojkoski had himself ascended the ladder. It was not unreasonable to rely on this to satisfy himself that the ladder had been properly secured.

110. That he was under some pressure is accepted, though that is part of the job when concrete is being poured.

111. I do not consider that Mr Stojkoski was negligent or that any negligence that may be imputed to him contributed to his injuries.

112. Since I have found all defendants liable to Mr Stojkoski, it is necessary to consider the claims for contribution and indemnity between them to ascertain whether such contribution should be made. That they are liable to Mr Stojkoski is, of course, a pre-condition to such contribution proceedings: Amaca Pty Ltd v New South Wales [2003] HCA 44; (2003) 77 ALJR 1509 at 1513; [20].

Apportionment under the Civil Law (Wrongs) Act 2002 (ACT)

113. On 1 November 2002, that is well before the workplace incident, the statutory provisions concerning apportionment were removed from the Law Reform (Miscellaneous Provisions) Act 1955 (ACT) to the Civil Law (Wrongs) Act 2002 (ACT). The provisions are currently located in pt 2.5, which relevantly provides:

19 Definitions - pt 2.5

In this part:

court includes arbitrator.

damage means loss of any kind (including loss of life, personal injury, damage to property and economic loss).

wrong means an act or omission (whether or not an offence) -

(a) that gives rise to a liability in tort in relation to which a defence of contributory negligence is available at common law; or

(b) that amounts to a breach of a contractual duty of care that is concurrent and coextensive with a duty of care in tort.

20 Each of several wrongdoers can be sued

(1) A judgment or decision against a person for damage caused by a wrong does not bar an action against someone else who is also liable for the same damage.

(2) However, if separate actions are brought in relation to the same damage -

(a) the total amount recovered in the actions cannot exceed the amount of damages awarded in the judgment or decision given first or, if that amount is amended on appeal, the amount as amended; and

(b) the plaintiff is only entitled to costs in the action for which judgment or decision is given first (including costs on appeal from the judgment or decision), unless the court considers there were reasonable grounds for bringing the actions separately.

21 Right of contribution

(1) A person (the first person) who is liable for damage caused by a wrong can recover contribution from someone else (a contributory) who is also liable for the same damage.

(2) The contribution must be an amount that the court considers just and equitable having regard to the extent of the contributory's responsibility for the damage.

(3) However, the first person is not entitled to contribution under this section if -

(a) the first person is liable to indemnify the contributory against the contributory's liability for the damage; or

(b) the court exempts the contributory from liability to make contribution; or

(c) the court has directed that contribution to be recovered from a person for the damage is a complete indemnity for the damage.

114. There is one significant milestone in the relevant legislative history. Until 5 April 2001 (see Law Reform (Miscellaneous Provisions) Amendment Act 2001 (ACT) sch 1; [1.8]), the earlier Act had referred to "where damage is suffered by a person as a result of a tort". Section 19 of the Civil Law (Wrongs) Act, however, defines "wrong" to include a breach of contract in certain terms but otherwise an act or omission giving rise to liability in tort in relation to which a defence of contributory negligence is available at common law. I need to consider whether this encompasses a breach of statutory duty.

115. As noted above (at [107]), contributory negligence is, in the ACT, not a defence to a claim for breach of statutory duty. That is, however, by statutory provision which was originally enacted in 1991 and then included in the Civil Law (Wrongs) Act.

116. The phraseology in s 19 of that Act is the same as in s 25 of the Wrongs Act 1958 (Vic), but the Victorian legislation does not have the equivalent of s 102(2), set out above (at [107]). The Victorian provision has been construed to exclude from contribution claims actions for intentional torts such as battery, as in Horkin v North Melbourne Football Club Social Club [1983] VicRp 12; [1983] 1 VR 153 at 158-61. That does not assist with resolution of this issue.

117. In 1926, the High Court held in Bourke v Butterfield & Lewis Ltd [1926] HCA 38; (1926) 38 CLR 354 that contributory negligence was not a defence to a claim for breach of statutory duty. That position was changed, however, when, in 1943, the High Court considered that it should defer to the decision of the House of Lords in Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152 which held, to the contrary, that, in the words of Lord Wright (at 178):

I am not prepared to agree that the defence of contributory negligence should be excluded in [cases sometimes described as statutory negligence] simply on the technical ground that the cause of action is not negligence in the strict sense, whereas contributory negligence presupposes original negligence. I have, however, come to the conclusion on a consideration of the English cases, that English law has accepted contributory negligence as a defence in this class of case.

See also Lewis v Denye [1940] AC 921 at 929-30.

118. In Piro v W Foster & Co Ltd [1943] HCA 32; (1943) 68 CLR 313, the High Court held that it should follow these decisions. Starke J said (at 326):

Technically the decision of the House of Lords does not bind this court, but I have no doubt that this Court should accept the decision as a correct statement of the law of England and overrule or disregard its decision in Bourke v Butterfield & Lewis Ltd

See also per Latham CJ (at 321), Rich J (at 325-6), McTiernan J (at 335-6) and Williams J (at 339-40).

119. It seems to me that this means that, despite the statute, which clearly changed the common law, the provisions of pt 2.5 do apply to claims based on a breach of statutory duty as, despite the statutory abrogation, the common law remains in Australia that contributory negligence is a defence to such a claim. Although in different circumstances, the analysis of Ipp JA, with whom Giles and Tobias JJA agreed, in Booksan Pty Ltd v Wehbe [2006] NSWCA 3; (2006) Aust Torts Reports 81-830, 68,279 supports that finding.

120. Accordingly, it is appropriate to deal with contribution as between the defendants in accordance with, in particular, s 21(2), that is that the contribution must be for "the amount that the court considers just and equitable".

121. Miles CJ in Fatur [No 2] has considered this matter, though in the context of the Law Reform (Miscellaneous Provisions) Act. The relevant considerations seem to me to be identical. His Honour said (at 137-8; [5]-[7]:

It is notorious that the decision as to the assessment of contribution is in the nature of a discretion so wide that, apart from requiring the Court to weigh all relevant considerations, the Act gives virtually no guidance as to the exercise of the discretion.

Most authoritatively for the purposes of this Court, the majority judgment in Nominal Defendant v Australian Capital Territory [1999] FCA 466 lays down the following principles:

16 The discretion under s 12 of the Act is a broad one and one which requires that considerable latitude be given to the Court in arriving at a judgment as to what is just and equitable: Pennington v Norris [1956] HCA 26; (1956) 96 CLR 10 at 16; James Hardie & Co Pty Ltd v Seltsam Pty Ltd [1998] HCA 78; (1998) 196 CLR 53 at 83 [79] per Kirby J with whom McHugh J agreed. Within the exercise of that broad discretionary judgment the Court is required to compare the culpability of each of the negligent parties, the relative importance of the acts of the negligent parties causing damage and to subject to comparative examination the whole conduct of each party in relation to the circumstances of the events giving rise to the negligently caused loss: Covacevich v Thomson [1988] Aust Torts Reports 67, 370 at 67,373. The discretion is not limited to such factors alone. It involves consideration of all relevant matters which go to the issue of what is the just and equitable sharing of responsibility for the damage suffered by the plaintiff: Bitumen and Oil Refineries (Australia) Ltd v Commissioner for Government Transport [1955] HCA 1; (1955) 92 CLR 200 at 212-213.

Apportionment between a plaintiff and a defendant is made on similar but not identical principles. In Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492 at 493-494, the High Court said:

A finding on a question of apportionment is a finding upon a question, not of principle or of positive findings of fact or law, but of proportion, of balance and relative emphasis, and of weighing different considerations. It involves an individual choice or discretion as to which there may well be differences of opinion by different minds: British Fame (Owners) v Macgregor (Owners) [1943] AC 197 at 201. Such a finding, if made by a judge, is not lightly reviewed ...

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, that is, of the degree of departure from the standard of care of the reasonable man [sic] (Pennington v Norris (at 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 682, Smith v McIntyre [1958] Tas SR 36 at 42-49 and Broadhurst v Millman [1976] VicRp 15; [1976] VR 208 at 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. The significance of the various elements involved in such an examination will vary from case to case. ...

122. It has been suggested by Fryberg J, in French v QBE Insurance (Aust) Ltd (2011) 58 MVR 215 at 269; [213], that there is probably no substantial difference between the expressions of principle in the cases to which Miles CJ referred.

123. There is, however, one further issue. It was submitted on behalf of Belconnen Concrete that it is relevant in these circumstances to determine whether the joint tortfeasor was also culpably negligent, for this would ordinarily increase the amount of the contribution that he, she or it should make. This submission was based on the following statement by Miles CJ in Fatur [No 2] when his Honour said (at 141; [17]):

[Professor John] Fleming [The Law of Torts, 8th ed, (1992)] (at 264, footnote 78), says that 'defendants liable for breach of statutory duty have not gone scot free' for the purpose of contributing to the damages for which another defendant is also liable, but the authorities cited do not entirely support his proposition. In Sherras v Van der Maat [1989] 1 Qd R 114 all three defendants were found liable for breach of construction safety legislation. The third defendant was found liable in negligence also. Counsel for the third defendant conceded that it should bear the whole of the damages, a concession which Thomas J thought was correctly made. Luxmoore LJ took a similar view in Wilkinson v Rea Ltd [1941] 1 KB 688, the other members of the Court of Appeal not considering the question. In Dooley v Cammell Laird & Co Ltd [1951] 1 Lloyd's Reports 271, Donovan J apportioned three quarters of the damages against the second defendant who was the plaintiff's employer and liable in negligence and breach of statutory duty and one quarter against the first defendant who was liable in breach of statutory duty only.

The footnote remains in the 10th edition (at 312, fn 96), though two more recent authorities are cited.

124. The terms used in s 21 are relevant. The section refers to a person "liable for damage" which, of course, imports no notion of fault in the sense of culpable carelessness as opposed to the almost strict liability imposed by the breach of a statutory duty. On the other hand, the contribution under s 21(2) is to be assessed "having regard to the extent of the contributory's responsibility for the damage". It may be accepted that responsibility is a wider term than fault, as noted in Carolyn Sappideen and Prue Vines (eds) Fleming's The Law of Torts (Lawbook Co, 10th ed, 2011) at 312. The imposition of the statutory duty is for a purpose, namely, to ensure that appropriate steps are actually taken to prevent injury. It seems to me that it is important not to dilute that obligation of all content.

125. Nevertheless, there is a rationality in requiring a tortfeasor who was also culpably negligent to share a greater burden of the damages.

126. So far as negligence is concerned, then, I am not satisfied that Belconnen Concrete was negligent. It could not reasonably have known of the need to move a ladder nor of the failure to have it correctly tied. Indeed, there had been other concrete pours on lower floors and I have not been told of any similar complaints. Nevertheless, its responsibility was to ensure its employees were protected.

127. As for Rovera, it, too, seems to me not to have been negligent itself, though it may well be responsible for the negligence of its contractor, Ironbat. It participated in "safety walks", and it contracted an experienced scaffolder. The evidence was that it supplied 10 ladders for the site. There was no evidence before me as to why five could not be found to ensure that all the columns on the Mezzanine level had ladders to the relevant scaffolding. It was accepted that it was for Rovera to determine the amount of scaffolding, including ladders, required to carry out relevant tasks.

128. On the other hand, it seems to me that CCB and Ironbat were negligent.

129. In the case of CCB, it had overall responsibility for the pouring of the concrete. Its foreman, Mr Bell, knew it was occurring and he knew that there were not enough ladders for all columns and that, therefore, there would be a need to have one moved and refixed. He said he thought that Mr Turnbull was still on site at the time. He did admit, however, that it was possible that Mr Turnbull had left. On the evidence, Mr Turnbull had left. Mr Bell had a duty to see that there was someone on hand to move the ladder. Mr Turnbull said he told Mr Bell that he was leaving and that he was, in effect, handing over responsibility for moving the ladders to Mr Bell and Mr Davis. They did not demur and I also note, though I cannot make a positive finding on the matter, that Mr Stojkoski said in his evidence that when he was moving the vibrator with Mr Bollard to the second column, the foreman was there and, indeed, carpenters.

130. As to Ironbat, I consider that Mr Turnbull leaving before the end of his shift, as I have found happened, was, in these circumstances, negligent. He knew that there was a concrete pour on; that it started before his shift ended; and that it was to be done with one ladder that had to be moved and should have been moved by a certificated scaffolder. To leave in those circumstances was negligent, even though he had delegated the responsibility to Messrs Bell and Davis, who, as I have noted, had other responsibilities.

131. The mystery in this case is who moved the ladder. I cannot make a finding on the evidence. Were I able to do so, this could obviously change the apportionment. Everyone who gave evidence denied that they did it. I entirely discount Mr Stojkoski and Mr Bollard. They were moving the vibrator and, given the need for, if not speed, then prompt action to continue with the pour, there is no reason why they would have done so, especially as there were others around.

132. I have found that Mr Turnbull had left, so he could not have done it.

133. There remains Mr Bell, Mr Davis, Mr Vince or some other person on site. Although he did not give evidence, I discount Mr Vince. There was no suggestion that he had the tools with which he could swiftly undo the fixed ladder at the first column. He also had other tasks to do, namely, give directions to the concrete pump hose operator and, by the time Mr Stojkoski and Mr Bollard got the vibrator to the second column, he was atop the ladder.

134. Mr Bell did indicate in his evidence that he had, on that day, helped to dismantle ladders and move them. He asserted that he did not move any ladders and not have them secured. He denied, however, receiving any requests from the concreters to move the ladders. He also said that Mr Davis was with him through the afternoon and he did not recall Mr Davis receiving any requests in relation to ladders.

135. Mr Davis knew that there were five columns to be poured and four ladders. He had inspected the four ladders and noted that they were tied off. He denied putting any ladders up that had not been tied off and he did not see anyone else do it.

136. There was some inconsistent evidence about whether there were other workers on the Mezzanine level during the pour. If there were, particularly someone like a carpenter with a hammer, he or she could have untied the ladder. Indeed, such a person could have lent a hammer to Mr Vince. All this, however, is entirely speculative.

137. Accordingly, I cannot make any finding about who moved the ladder from the first column to the second column.

138. As a result, I am left with the findings that each of the four defendants had a statutory duty which they owed to Mr Stojkoski and which they breached. Those breaches caused his injuries. In addition, I have found that CCB and Ironbat breached that duty in a manner involving negligent conduct that is relevant to determining the just and equitable apportionment of damages.

139. On the basis of these findings, I would apportion the respective contributions as the liability for Mr Stojkoski as follows:

140. I assume that interest at the relevant pre-judgment rate should be added to the agreed sum of damages of $705,000.00. See r 1616 and sch 2 pt 2.1 of the Court Procedures Rules.

141. I shall direct the parties to bring in short minutes of order to give effect to these reasons. I shall also permit the parties, if they wish and cannot include them in the short minutes of orders, to make any submissions as to costs.

I certify that the preceding one hundred and forty-one (141) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.

Counsel for the plaintiff: Mr G Parker, Mr W Sharwood

Solicitor for the plaintiff: Slater & Gordon Lawyers (incorporating Gary Robb & Associates Barristers and Solicitors)

Solicitor for the First Defendant: Sparke Helmore Lawyers

Counsel for the Second Defendant: Mr B A Meagher SC

Solicitor for the Third Defendant: Capon & Hubert Lawyers and Mediators

Solicitor for the Fourth Defendant: Wood Fussell (now Goodman Law) as agents for Hunt & Hunt Lawyers