Takacs v The Uniting Church

LEGISLATION CITED : Construction Safety Act 1912 (NSW) (Act No. 38) Construction Safety Regulations 1950 (NSW)

Australian Safeway Stores Pty Limited v Zaluzna (1987) 162 CLR 479 Bankstown Foundry v Braistina (1986) 160 CLR 301 Bhambra v Roet [2003] NSWCA 393 Buckman v Flanagan (1974) 133 CLR 422 Davey v Skinner [1961] NSWR 216 Davis v Wagga [2004] NSWCA 34 Ellavale Engineering v Pilgrim [2005] NSWCA 272 Griffiths v Kerkemeyer (1977) 139 CLR 161 Heatherington v Mirvac [1999] NSWSC 443 Hollis v Vabu (2001) 207 CLR 21 Husher v Husher (1999) 197 CLR 138 Kappadoukas v Fransepp [2006] NSWCA 366 CASES CITED : Kolodziejczyk v Grand View [2002] NSWCA 267 Lenz v Trustees of the Catholic Church [2005] NSWCA 446 Maggiotto Building Concepts v Gordon [2001] NSWCA 65 Multiplex Constructions Pty Ltd v Lopez [2004] NSWCA 319 Papatonakis v ATC (1985) 156 CLR 7 Podrebersek v AI&S (1985) 59 ALJR 492 Project Blue Sky v ABA (1998) 194 CLR 355 R v Central Reference Board; ex parte Theiss (1948) 77 CLR 123 R v Gray; ex parte Marsh (1985) 157 CLR 351 R v Isaac; ex parte TWU (1985) 159 CLR 323 R v Neil; ex parte Cinema International (1976) 134 CLR 27 Thompson v Woolworths (2005) 221 CLR 234 Todorovic v Moussa [2005] NSWCA 100

PARTIES : P: John Ernest Takacs D: The Uniting Church in Australia Property Trust (NSW) t/as Northaven Retirement Village

COUNSEL : P: Mr P.G. Mahony SC, Mr R.E. Quickenden D: Mr A.C. Bridge SC, Mr R.G. Gambi

SOLICITORS : P: Mr J.H.G. Finney (CBD Law Solicitors & Attorneys) D: Mr C.B. Brierley (Ebsworth & Ebsworth Lawyers)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

20224/2005 TAKACS, John Ernest v UNITING CHURCH IN AUSTRALIA PROPERTY TRUST (NSW) T/AS NORTHAVEN RETIREMENT VILLAGE

JUDGMENT 1 ROTHMAN J: The plaintiff suffered injury when he fell approximately 9 metres (3 stories) from the roof on premises owned and operated by the defendant. The injury occurred on 4 May 1999. 2 The plaintiff sues for damage arising out of the injury claiming that the defendant was negligent and in breach of Regulations 73 and 74 of the Construction Safety Regulations 1950 (NSW) made pursuant to the Construction Safety Act 1912 (NSW) (Act No. 38). To the extent that damages arise under the common law, issues of contributory negligence arise.

Facts 3 The plaintiff, having been born on 28 January 1967, was 32 years of age at the time of the incident. The plaintiff completed a four year apprenticeship as a painter. He worked for a business called Douglas Painting Services for one year and thereafter purchased the business, changing its name to Brush-Rite. The work performed by the plaintiff in that business was the painting of shipping containers and commercial buildings (although, in the latter case, not generally new construction). 4 The plaintiff operated the business that he had acquired as a partnership and had done so from approximately June 1997. 5 The plaintiff is married with three children, all of whom are at school. Prior to the injury about which complaint is made, he played sport, being Rugby League and Judo and played Golf every Saturday. In 1994, some years prior to the injury subject to the present proceedings, the plaintiff was involved in a motor vehicle accident and suffered some injury although, on the material before the Court, it was relatively minor and the symptoms and pain from that injury disappeared after approximately 6 months. The plaintiff had no further problems from that earlier injury. 6 The plaintiff performed work for a variety of companies including Telstra, Arnott's Biscuits, McDonalds and the like. His work included painting machinery, walls and buildings, ovens and other machinery and other maintenance. He was, as is obvious, an experienced painter who was aware of the means of safe use of ladders. Notwithstanding his apprenticeship and experience he had never worked on roofing and had never had occasion to build scaffolding. 7 As already stated, on 4 May 1999 the plaintiff fell from the roof of the premises owned and occupied by the defendant. The plaintiff had gone to the premises at the invitation of Mr Bruno Bagnara, the defendant's building maintenance manager. 8 The plaintiff had worked for the defendant on a number of occasions at different locations on the North Shore of Sydney. On each occasion the plaintiff was invited to measure, quote and ultimately perform work. On each occasion the arrangement was made with Mr Bruno Bagnara. 9 The evidence is that Mr Bagnara took care of the maintenance of the buildings of the defendant and I infer that he organised, coordinated and supervised general building maintenance and minor construction work for the various premises of the defendant. He was employed by the defendant and had an office in the basement of the defendant's premises at the Northaven Retirement Village. 10 On 4 May 1999 the plaintiff received a telephone call from Mr Bagnara who asked him to "come and do a quote". Mr Bagnara told the plaintiff that he wanted him "to have a look at a roof". 11 The plaintiff responded that it was getting a little late and that he just wanted to go home and asked if it were possible if he could do it tomorrow. After a short conversation about the then location of the plaintiff, Mr Bagnara said to him: "You have to drive past here to go home; so just drop in."

As a consequence of that conversation, the plaintiff arrived at the premises at Northaven. 12 On the way to Northaven, the plaintiff collected a friend of his, another painter, Mr John Ayre, to whom he was providing a lift home to the Central Coast where they both lived and where they were intending to go for a drink. 13 On arrival at Northaven the plaintiff and Mr Ayre went to Mr Bagnara's office in the basement. Mr Bagnara said to him: "Come with me; come up and I'll show you what I want you to look at." 14 At that point the plaintiff, Mr Bagnara and Mr Ayre climbed an internal staircase that went to the top of the building to a locked door. Mr Bagnara unlocked the door and said:

The plaintiff did precisely that; at which time he, Mr Bagnara and Mr Ayre were standing on a roof platform on an air-conditioning unit. About 6 foot below the platform was the main roof. 15 The main roof consisted of old profile kliplok roofing. Kliplok roofing is a form of roof sheeting in which the sheets lock together by clips - hence the name. Each sheet consists of a number of ridges with a flat panel between each of them. In the case of this kliplok sheeting, the ridges are not sufficiently distant from each other to be able to place the length of a foot between the ridges, at right angles to them, on the flat panel. As a consequence, it was difficult to walk across the roofing and it would require either walking sideways (placing each foot sideways in the flat panel between the ridge) or placing the foot on two ridges (the heel on one ridge and the toe area on the other). 16 While standing on the platform surrounding the air-conditioning tower Mr Bagnara showed the plaintiff the area of the roof that was, in Mr Bagnara's view, problematic. There was rust on a section of the roof. The rust that he was shown was between the ridges in the flat panel section of some sheets and was, in the opinion of the plaintiff, very minor. That opinion is not controverted. 17 When the plaintiff saw the section of rust from the platform, he expressed the view to Mr Bagnara that:

"I would have thought there would still be many many years before it needed work."

Mr Bagnara asked how it would be treated and the plaintiff responded:

"There are paint chemicals you can put on to sort of create a coating to put the rust back into the roof to seal it off."

Mr Bagnara responded that he wanted to get a quote to paint the roof. To that comment, the plaintiff responded:

"This sort of roof, if you want to do it properly, you should use industrial paints, so you are going to get that long-term issue out of it. The cost of industrial painting on this size roof; surely it would be cheaper to get a roofer in and replace it."

"Still just measure it, and give me a quote and we'll talk about it later." 18 The three of them then moved around the platform to an area where another section of the roof (or another part of the roof) could be seen and Mr Bagnara said:

The plaintiff responded: "How are we going to get down there?" 19 After a further currently irrelevant conversation and at Mr Bagnara's suggestion, the plaintiff and Mr Ayre waited while Mr Bagnara obtained a ladder which fitted into a section of the platform where the balustrade was not glassed in. He lowered the ladder through the balustrade onto the roof below. Mr Bagnara then said words to the following effect: "Go down and measure the roof. I'm going back to my office; as soon as you measure it bring the ladder back to me and go home." 20 It seems the plaintiff commented on the design and the absence of glass panels in two places on the air-conditioning platform to which Mr Bagnara said: "This is always how we get access to that roof." 21 The ladder, as earlier stated, was placed in the gap in the balustrade to the roof below by Mr Bagnara leaning it back on the chilling tower. The ladder was unsecured. In accordance with the abovementioned statement of Mr Bagnara, the plaintiff climbed down the ladder as did Mr Ayre. Mr Ayre stayed at the base of the ladder holding the coil end of a measurement tape while the plaintiff walked out over the roof in order to do one measurement of the roof's length and one measurement of its breadth. The plaintiff held the end of the tape measure and the tape moved out of the coil as the plaintiff moved away from Mr Ayre. 22 As earlier stated it was not possible to walk normally on the roofing. The plaintiff walked on the roofing by having the heal of his shoe on one ridge and the front of his shoe on the next; thereby walking on two ridges at a time and the major part of his foot (or boot) was unsupported. The plaintiff was wearing steel-capped work boots. The top of the ridges were approximately 50 to 60 millimetres in height above the flat panel of the sheeting. 23 The intention was for the plaintiff to go to the end of the roof, crouch down and hold the tape so that Mr Ayre could read the measurement required by Mr Bagnara. 24 Surrounding the roof sheeting was a parapet the height of which varied because of the slope of the roof. At one end of the roof the parapet was approximately 600 millimetres and at the far end (the end to which the plaintiff was walking) it was at or about shin height. 25 As the plaintiff approached the end of the roof he crouched in order to place the tape along the roof and measure it relatively accurately. As he crouched his foot slipped between the ridges of the kliplok, got caught there and the plaintiff stumbled. 26 It was his right foot that was caught between the ridges of the kliplok and the stumble was enough to put the plaintiff off balance. The plaintiff was unable to regain balance, went to grab for the parapet but, because of its height, or lack of it, was unable to grab it and rolled over the edge of the roof. The plaintiff fell 3 stories, approximately 9 metres, landing on his right upper arm and the right side of his body. He suffered multiple injuries to the details of which I will return later in this judgment. 27 The above recitation of facts is that given by the plaintiff or that which properly flows from an understanding of the plaintiff's evidence. Mr Ayre was called by the plaintiff and generally corroborated the evidence of the plaintiff, although he had little or no recollection of the terms of the conversations to which I have referred. 28 It is appropriate for the Court to note that the plaintiff was a believable witness who gave evidence, it seems, truthfully, honestly and fully. His account of the accident is not controversial. He gave the impression of being generally understated in terms of his injuries, to which I will return, and was prepared to give evidence that was considered by him unhelpful to his case. His evidence was truthful and accurate, if not understated, and I accept it. 29 The defendant adduced no oral evidence and, in particular, did not call Mr Bagnara. The inferences that flow from that course reinforce the impression already gained. 30 From the circumstances recited above, a number of conclusions can be drawn. First, the plaintiff was not an employee of the defendant. Secondly, the defendant employed a construction or building manager whose task was to coordinate and organise the repair and renovation of the buildings used in the business of the defendant. Thirdly, and predominantly because of the immediately preceding statement, the defendant was engaged in construction work (a definition with which I will deal later), although it was not the sole or major undertaking in which it was engaged. Fourthly, as part of that organisation the building manager, Mr Bagnara, contacted the plaintiff (a person who regularly performed work for the defendant) and required him, over his protestations, to attend at a time inconvenient to him. Fifthly, the plaintiff informed the defendant that it was unnecessary, at that time, to paint the roof and that, given the cost of proper treatment of the roof, it would be less expensive to replace it. Lastly, the defendant, through Mr Bagnara, required the plaintiff to descend to the roof, provided the means by which the plaintiff could descend and required the plaintiff to provide, not only a quote for painting, but measurement of the roof, and then to return the ladder to Mr Bagnara. 31 There is no evidence to suggest that any other person was asked to quote on the roof; nor that there was an intention on the part of the defendant to request any other quote. It is also clear that Mr Bagnara, who at all relevant times was the employee of the defendant, retained control over what was required of the plaintiff as to both end product and the manner in which that end product would be derived. Thus, it is clear from the conversations, that Mr Bagnara directed the plaintiff onto the roof; directed him to take and provide measurements of the roof; and directed him as to the time at which he should come to perform the work. Mr Bagnara also directed him as to the means by which he would gain access to the roof and at all stages had control over whether, if at all, the plaintiff would gain such access. 32 Liability is claimed on two bases: breach of the Construction Safety Regulations and on the basis of common law.

Liability: Statutory Breach 33 The Construction Safety Act 1912 (NSW) (Act No. 38) as it was in force at the time of the accident on 4 May 1999 had relevant definitions which were: "[3] (1) 'Building work' means: (a) work in constructing, erecting, installing, adding to, altering, repairing, equipping, finishing, painting, cleaning, signwriting, sheathing, spraying, dismantling or demolishing or any other prescribed operation that: (i) is done in relation to a building or structure, at or adjacent to the site thereof, or …."

… 'Construction work' means: (a) building work, excavation work, compressed air work and diving work …. 'Constructor', in relation to any construction work, means the person who by himself or herself (otherwise than as a servant or agent of the person carrying out that work) or by the person's servants or agents carries out that work." 34 The relevant provisions of the Construction Safety Regulations 1950 (NSW) made pursuant to the Construction Safety Act 1912 (NSW) are: "[73] Any person who directly or by his servants or agents carries out any construction 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 such construction work and for this purpose, without limiting the generality of the foregoing, he shall, subject to Regulation 74: (1) provide suitable and safe scaffolding, which shall conform to the requirements of these Regulations, for all work which cannot be done safely by a person standing on permanent or solid construction, except when such work can be done safely from ladders constructed in conformity with the provisions of these Regulations, … (3) provide means by fencing or otherwise for securing the safety of any person working at a place from which he would be liable to fall a distance of more than 1.8 m, …

(8) effectively fence in the manner prescribed by these Regulations, all platforms, the open sides of all floors, openings in floors, roofs and platforms into which persons could accidentally walk, the open sides of stairways and stairway landings and all excavations and holes more than 1.5 m deep. Provided that it shall be permissible to remove when necessary any guard rail, fence or part thereof for the purpose of handling materials or for the installation of other work, subject to such guard rail, fence or part thereof being at once replaced upon completion of such work, … "[74] (1) Where there is a risk that a person engaged in construction work may fall because there is no adequate hand hold or foot hold, the person in charge of the construction work shall provide: (a) a safety belt and safety line or safety harness and safety line complying with the requirements of AS 1891 for the use of that person, or (b) a safety net complying with the requirements of BS 3913, while the work is being carried out…."

Regulation 73 35 Two issues arise in the determination of liability for what is alleged to be a breach of the statutory duty: first, the claim that, in these circumstances, the defendant "carried out" construction work; and secondly, whether the work in question was "construction work". In my view, the two issues are inextricably interwoven. It is necessary to explain. Authorities in the area tend to concentrate on the meaning of the words "carries out" in Regulation 73 and analyses of factual issues tend to commence with the well known passage in Buckman v Flanagan (1974) 133 CLR 422. 36 Buckman v Flanagan, supra, determined that the Act and Regulations placed "particular responsibilities upon the person actually carrying out the particular building work, that is to say, doing it himself personally, or by his servants or by those whose acts are in law his acts." Thereafter, on the basis of that binding authority, the discussion has focused on who is performing the work and whether there is any residual control in the performance of the work by principals to whom, in the case of independent contractors, they have contracted. 37 However, in order to understand fully the history of the section, one ought start with the judgment of the Full Court of the Supreme Court of New South Wales in Davey v Skinner [1961] NSWR 216. In Davey v Skinner the majority judgment of Evatt CJ and Herron J determined that in circumstances where, coincidentally, a church group undertook building work and undertook to provide scaffolding and deliver bricks on that scaffolding to the bricklaying contractor, the bricklaying contractor was carrying out building work and responsible for compliance with Regulation 73 for the scaffolding that it did not supply. 38 In the course of the judgment in Davey, the majority said: "The framers of the Regulations, as we have shown, were alive to the many categories of persons who can be classed as performing building operations yet chose to cast the safety obligations on the person who carries out any building work . As we have said, the opening words of Regulation 73 … require the observance of both the general and specified measures by any person who carries out any building work. A definition of such a person is in turn provided. He is a person who carries out the work (a) directly; that is one who personally performs or executes the work; (b) by his servants. No difficulty arises here as this refers to his employee; (c) by his agents. This is intended to avoid any narrowing of the field of responsibility to cases where those technically regarded servants are employed under a contract of service. The use of the familiar phrase 'servants or agents', from the subject matter of the Regulations, is intended to embrace those employed under a contract for services, that is, not merely servants properly so called, but also the agents, whom, though not strictly servants, the person carrying out building work employs to do for him what he has engaged to do…. A contractor in the position of the defendant is one, even if he is not the sole, person, to whom Part V is directed. Both the head contractor and the sub-contractor may be liable both civilly and criminally: Mulready v JH&W Bell [1953] 2 Q.B. 117 at 126. It may be said to be hard on a sub-contractor whose sub-contract is concerned only with the bricklaying, but under the Regulations it is primarily the workman's situation that must be considered. In a large building project the different trades usually operate under a series of sub-contracts. If a plumber or an electrician contracts to do all of the work of that class throughout the building it is not surprising that each should be responsible for the appropriate safety measures and to see to it that their respective workmen are provided with scaffolding and means of access to the work suitable to the class of work undertaken, and this by definition equally applies to a painter or signwriter or other trades." ([1961] NSWR at 221, 222) 39 Interestingly Sugarman J (as he then was), dissented on the basis that it was the church body, who subcontracted to the bricklayers, that was responsible and that was "carrying on" building work. He said: "The expression 'building work' is used many times in the Regulations, not in a single uniform sense and not always in complete consistency with the definition of the same expression in section 3 of the Act…. However, I believe that there is some consistency in the use of the expression in section 6 of the Act and in various of the Regulations, where it refers, in my view, not to each single operation, such as bricklaying, carpentering and so on, in a larger work of constructing or erecting a new building, but to the particular work as a totality. Where that totality is, as here, the construction or erection of a new building, I find it difficult to accept that section 6 was intended to require each and every sub-contractor for any portion of an entire work of construction or erection to serve the notice therein referred to. I find from Regulation 74 … that a 'building work', in the sense there intended, may have 'parts' on which particular persons may be engaged … The subject of the duty and the objects of the rights conferred by Regulation 73 are, respectively, 'any person who directly or by his servants or agents carries out any building work' and 'persons engaged in such building work'. The relationship envisaged is not necessarily, or limited to, that of master and servant or employer and employee, which relationship in any event involves a common law duty of the master or employer to use due care for the safety of his servant or employee. The contemplated relationship is, rather, one of proximity in the wider sense, based on control of the situation, on the one hand, and exposure to risk in that situation, on the other. The 'persons engaged in such building work' may include employees, independent contractors working on the job, independent contractors who work on the job along with their own employees, and the employees of independent contractors. To treat the words 'any person who … building work' as related to individual operations, such as bricklaying, carpentry, plumbing, tiling, electrical work and so on, would introduce great complexity. It would make it difficult to discover any rational distinction between the subjects and the objects of the duties imposed and the content of the expression which describes them - between the person who 'carries out' any building work and the person who is 'engaged in' such building work - or to stop short of regarding the first of these expressions as comprehending everybody who, whether as employer or employee, works on the job. 'Carries out building work' and 'engaged in building work' would thus mean the same thing." ([1961] NSWR at 224 - 226) 40 It can be seen in the judgment in Davey v Skinner, whether the majority judgment or the dissenting judgment, that at no stage could it be said that the principal contractor was excluded from liability and responsibility for compliance with the Regulations. The difference between the majority and dissenting judgments in Davey is that the majority judgment considered that sub-contractors would, as well as the principal contractor, be responsible for compliance with the Regulations. 41 Davey was the subject of analysis and comment in Buckman, supra. The most quoted passage in Buckman is that which derives from the judgment of the Chief Justice, Barwick CJ, at 427 in which his Honour said: "The policy of the Act will be found in its express provisions. It is not proper, in my opinion, to suppose some policy and then to construe the language used by the Act in order to effect that policy. [compare Project Blue Sky v ABA (1998) 194 CLR 355 at [69], [70] and [78].] Of course, if the language of an Act as a whole discloses the purposes the Act is intended to effect, particular expressions can take their meaning to conform to that policy. In the case of this Act it is only the actual provisions it makes that any policy is to be found. The heading to the relevant Part of the Regulation adds nothing and is merely descriptive of the Regulations themselves. For my part, I perceive that the Act and the Regulations purpose to place particular responsibilities upon the person actually carrying out the particular building work, that is to say, doing it himself personally, or by his servants or by those whose acts are in law his acts. This seems to me an eminently practical and workable scheme of legislation. By imposing obligations on such persons in respect of the several sections of the total building enterprise the safety of all will be secured. I am unable to accept the view that the word 'agents' comprises independent contractors who are themselves carrying out the building work which they have contracted to do." ( Buckman v Flanagan , supra at 427-428, per Barwick CJ) 42 That has been generally understood to exclude principal contractors, or some of them, from the responsibility to comply with the Regulations. However, it is clear from the text of the judgment and in particular the comments of the Chief Justice on Davey, supra, that his Honour was using the term "independent contractors" atypically. The Chief Justice said: "It is not consistent, in my opinion, with that conclusion to include independent contractors who are carrying out particular building work as 'agents' of the building owner or contractor so as to impose on him the obligation which clearly will fall upon the independent contractors vis-à-vis the building work they are actually doing. Consequently, I am unable to accept the view expressed by the majority in Davey v Skinner when they said: 'in some circumstances such an expression' (servants or agents) 'could extend to independent contractors, as Williams J held in Ryan's Case .' But I do agree that: 'the use of the familiar phrase 'servants or agents', from the subject matter of the Regulations, is intended to embrace those employed under a contract for services, that is, not merely servants properly so called, but also the agents, whom, though not strictly servants, the person carrying out building work employs to do for him what he has engaged to do', that is to say, persons whose acts are in law the acts of a principal. But this description does not include independent contractors." ( Buckman , supra, at 429, per Barwick CJ) 43 It is plain from the above that Chief Justice Barwick was using the term "independent contractor" in a particularly precise and unusual way. The general discrimen between employees and independent contractors is the distinction between a contract of service and a contract for services. Yet his Honour the Chief Justice differentiates "independent contractors" from those engaged "under a contract for services". It seems that, properly analysed, the Chief Justice took the view that responsibility fell on that contractor who was, or who would be, vicariously responsible for the conduct of persons performing building work, being the building work which was directly responsible for the failure to comply with the regulations. His Honour Justice Stephen expressly agreed with the views of the Chief Justice. He did so after referring to the judicial analysis of both the majority and minority members in Davey v Skinner and the reasons for judgment of other members of the High Court in Buckman. He said: "The imprecision of the language in which the Regulations as a whole are framed and the extent to which that language affords room for differences in interpretation is manifest. Having had the opportunity of considering the reasoning in these various judgments, which have subjected to careful examination every available aid to the interpretation of this ill-worded legislation, I do not propose to cover once again ground already much traversed. I agree with the views which have been expressed by the Chief Justice in his reasons for judgment and in the form of order which is there proposed." ( Buckman at 434, per Stephen J) 44 The other members of the majority who made orders in or to the same effect as that proposed by the Chief Justice did so for reasons which do not expressly agree with the Chief Justice. Justice McTiernan who, with the Chief Justice and Stephen J, forms the majority judgment, took the view, expressly, that responsibility for compliance with the regulations fell to the person who carried out, or failed to carry out, the work that would be covered by the Regulation and to the contractor, if any, who was vicariously responsible for that person's conduct. He said: "The work described includes specific functions, such as 'erecting' (which was the respondent's function in this case) rather than the whole construction undertaking itself. Thus the obligation to observe the precautions described in … Regulation 73 would here fall on the respondent Flanagan rather than on Shaw or Buckman, since it was he who was carrying out the relevant building work as described by section 3. It cannot be said that either Buckman or Shaw was vicariously liable under the Regulation as regards the work carried out by Flanagan, by considering Flanagan to be the 'agent' of either appellant. Flanagan was an independent contractor, and the relationship between an independent contractor and the person with whom he contracts does not carry with it the legal consequences of the relationship of agency. It therefore does not here shift to Buckman or Shaw the liability imposed on Flanagan as the person carrying out the building work, since he was not carrying out such work as agent or [of] either appellant in the strict sense." ( Buckman at 432-433, per McTiernan J) 45 Justices Mason and Jacobs did not agree in the reasons of the majority on this question. The majority judgment determines that the term "agents" in Regulation 73 refers to persons for whom the person is vicariously liable. By necessary implication from the terms of the judgment it determines that only such a person who, by servants or agents, as described, is carrying out the building work which gives rise to the risk and/or otherwise gives rise to the breach of the Regulation, is liable. There seems to be little or no discussion on the meaning of the word "building work" except the discussion which refers to the provisions of section 6 of the Act. Chief Justice Barwick came to the view that the terms of section 6 of the Act made clear that only one such person could be carrying out the building work of any particular kind and therefore only one such person came under the obligation to serve the requisite notice on the chief inspector in relation to that work. In that regard the Chief Justice agreed with Mason J. 46 However, Barwick CJ took the view that only the person responsible (directly or vicariously) for the work in question was responsible for compliance with the Act and Regulations now in issue. Translating such an approach to the current circumstances, if taken literally, it would mean that, in some circumstances, no one would be responsible for compliance with the Regulations. Leaving aside the degree of control that the defendant in fact had over the work performed by the plaintiff (to which issue I will return), a painting contractor engaged to repaint a flat roof that was fenced inadequately by others who were not then engaged in carrying out any building work would not be responsible for the fencing because the painting contractor had not been engaged to undertake that fencing or safety work; nor had anyone else. 47 Justice Mason deals with this issue in the following way: "Regulation 73, unlike section 6, speaks of a person who carries out building work directly or by his servants or agents. But for the presence of the word 'directly' and the alternative reference to 'servants or agents' it would be easy to conclude that the Regulation imposed a duty, conformably with section 6, on the person (not being an employee) who executes the relevant building work and on that person alone. The obligation, breach of which is punishable by conviction and penalty, would then be confined to the person who 'carries out' the work and has it within his power to comply with the stipulated requirements in so far as they relate to the work. However, some effect must be given to words which indicate that the obligation rests not only on a person who carries out the work directly or by his servants but on one who does so by his agents. The word 'servants' excludes independent contractors, but the same cannot be said of the word 'agents'. Although an independent contractor is not usually described as an agent of the person with whom he contracts, it may be correct in a suitable setting to speak of one to whom the performance of a task is by contract delegated by another as the agent of that other and therefore to refer to a sub-contractor (and a sub-sub-contractor), although he is an independent contractor, as the agent of the other contracting party and where appropriate, the builder. Such a setting is provided by Regulation 73. The duties which it imposes are in my view prescribed not only for the protection of the servants of the individual contractor but for the protection of all persons engaged in building work in a particular building…. The competing interpretation is that the duty of compliance is cast only upon a person in relation to the work which he carries out by his servants or agents, excluding that work which is undertaken by sub-contractors. Because the opening words of the Regulation limit the class to be protected to those 'engaged in such building work', it would exclude sub-contractors and their employees from the class sought to be protected in relation to work done by the builder or head contractor. This is a narrow view of the operation of the Regulation. Despite the need to construe the Regulation strictly because it is primarily penal in character (see Regulation 164), it is a view which in my view should not prevail…. I can find little support for the submission that Regulation 73 casts a duty on the builder to the exclusion of sub-contractors, the view which Sugerman J preferred in Davey v Skinner . Not only is it inconsistent with the opening words of the Regulation, but it is at variance with my understanding of the statutory definition of 'building work' contained in section 3. Accordingly, I approach the matter on the footing that the Regulation imposes duties on builder and sub-contractor and that the duties extend to building work done by a person through a sub-contractor." ( Buckman at 439, 440, 441) 48 While the reasons for judgment of Mason J, with respect to his Honour, are overwhelmingly compelling, the judgment of the majority (Barwick CJ, McTiernan and Stephen JJ) is binding. 49 The issue of liability under the Regulations has been the subject of much discussion. It is necessary to deal with those judgments. However, it is sufficient to remark that the circumstances reveal an approach which seeks to reconcile the comments of the majority and the minority in Buckman. In so doing, the circumstances suggest two extremes: at one end the position of the consumer (householder, owner-builder or occupier) who delegates the carrying out of all building work and who is thereby not liable for any non-compliance with the Regulation; at the other extreme is the employer who is vicariously responsible for the conduct of employees who in the course of their employment have failed to comply with the Regulation, thereby rendering the employer responsible for the non-compliance. Between those two extremes there are a range of circumstances which involve varying degrees of delegation and varying degrees of involvement in the carrying out of building work. Liability is determined by the degree to which there has been a retention of involvement in the carrying out of the building work and thereby a retention of responsibility for non-compliance with the Regulation. It seems that in no case has liability been sheeted home to a person not involved in the building and/or construction industry, i.e. a householder or occupier. 50 It is unnecessary to discuss every judgment of the Court of Appeal in which these issues are analysed. It suffices to examine five of them: Maggiotto Building Concepts v Gordon [2001] NSWCA 65; Kolodziejczyk v Grand View [2002] NSWCA 267; Bhambra v Roet [2003] NSWCA 393; Todorovic v Moussa [2005] NSWCA 100; and Lenz v Trustees of the Catholic Church [2005] NSWCA 446. 51 In Maggiotto, the Court of Appeal (Ipp AJA, with whom Meagher and Stein JJA agreed) referred at length to Buckman and to the judgment of Wood CJ at CL in Heatherington v Mirvac [1999] NSWSC 443. Ipp AJA reconciled the reasons for judgment of Barwick CJ and Mason and Jacobs JJ. In a passage which, although oft cited at length, bears repeating once more, Ipp AJA said: "[20] Mason J explained that the legislation confers no private right upon a sub-contractor against the head contractor 'when the doing of the work which attracts the performance of the duty has been wholly delegated to the sub-contractor so as to impose the same duty on him and he does the work in breach of the duty in the absence of fault on the part of the builder'. Where, however, the head contractor participates in the faulty construction work, a different result will follow. Thus, Mason J said (at 444): 'From this material a jury could conclude that the appellant's breach of par. 17 did not solely arise because the respondent was in breach of the same provision; on the contrary a jury might well conclude that the appellants participated by act or approval in reducing the stability of the column without taking any step prescribed by par. 17'. [21] Jacobs J made the same point. His Honour observed (at 446) that: 'Where the exposure to accident risk occurs ... as a result of the employee or sub-contractor having failed to perform the necessary acts performance of which has been properly delegated to him, then the exposure to accident risk of that employee or sub-contractor alone is not a breach of the statutory duty ...' Jacobs J went on to say (at 447): 'It will generally be found in the case of an employee and it will often be found in the case of a sub-contractor that, though performance of the acts necessary to performance of some statutory duties may properly be delegated to them, the performance of other acts and the compliance with other statutory duties will remain the direct obligation of the employer or the head contractor as the case may be. Whether in any particular case this is so will depend upon the circumstances'. [22] Earlier, Jacobs J (at 446) dealt with the situation where a person carrying out building work delegates work to a sub-contractor but still has a statutory duty not to expose that sub-contractor to accident risk. His Honour said: 'When an employee is instructed to do building work in circumstances where the employer has a statutory duty to do acts or things in order to ensure their safety when engaged on the building work there must be more than an implication that they will take any necessary preliminary steps in order to ensure that the work which they are instructed to do is done in conditions where under the statutory duty of the employer is fulfilled. An employee must be particularly directed to do the specific work necessary in order to fulfil the employer's statutory duty and must be provided with all material, assistance and supervision necessary to ensure his ability to comply with the statutory duty. A sub-contractor must be under a particular contractual obligation expressed or necessarily to be implied from the nature of the work to carry out the preliminary work necessary to ensure that when he and those under him are engaged in the building work they will be so engaged in conditions which satisfy the statutory duty'. [23] In my opinion, the reasons for judgment of Mason and Jacobs JJ are not inconsistent with those of Barwick CJ. They can readily be reconciled. [24] The essential point made by Barwick CJ was that whether a person was obliged to comply with the regulation depended upon whether that person was actually carrying out building work: see Hetherington v Mirvac Pty Limited [1999] NSWSC 443 per Wood CJ at CL. [25] Mason J held that where a person participates, whether by act or approval, in the building work carried on by the independent contractor to whom the work has been delegated, that person is duty bound by reg 73. There is nothing in this proposition that departs from anything said by Barwick CJ. [26] Jacobs J pointed out that, where a head contractor instructs some other person to carry out part of the building work, circumstances may arise that require preliminary steps to be taken to ensure that the work which the other person is instructed to do can be done safely. The issue then arises as to the responsibility for those preliminary steps. It must be a question of fact in each case as to whether the other person has been instructed to perform the preliminary steps as well as the work, the subject of the express instructions. [27] According to Jacobs J, the head contractor will only be regarded as having instructed the other person to perform the preliminary steps if that person was particularly directed to do the specific work 'necessary in order to fulfil the [head contractor's] statutory duty'. That is to say, according to his Honour, the head contractor will only avoid having a statutory duty in regard to the preliminary steps if the head contractor particularly directs the other person to take those steps. Additionally, the other person 'must be provided with all material, assistance and supervision necessary' to ensure compliance with reg 73. [28] These remarks have to be seen in the context of the statement by Barwick CJ that under the regulations a head contractor owes no duty thereunder in respect of work delegated by it. Jacobs J was merely saying that a court will be slow to hold that instructions to another person to carry out specific work impliedly include instructions to perform the preliminary steps that may be required to make that work safe. His Honour observed that where the express instructions do not cover the preliminary steps, the head contractor may continue to owe statutory duties in regard to the work involved in those steps. Nothing in this approach departs from that of Barwick CJ. [29] It is not unusual for a head contractor to delegate a specific task to a sub-contractor and to say nothing about the ancillary work or preliminary steps necessary to ensure the safety of those who will be working on the delegated task. In that event, the task of doing the work necessary to complete the ancillary work or preliminary steps may well not be within the work delegated. In such a situation, were the head contractor not to be duty bound to comply with reg 73 in regard to the ancillary work or preliminary steps, there would be a gap in the security net that the regulation is intended to provide. The safety of all involved in the total building enterprise would then not be secured. The strictures expressed by Jacobs J are designed to prevent such a gap from opening. To ensure that the policy of the legislation, as enunciated by Barwick CJ, is fulfilled, the approach of Jacobs J should be adopted." 52 Dealing with the factual circumstances before the Court, Ipp AJA said: "[38] Gordon was instructed merely to do the carpentry work at unit 33 and to do so without there being stairs in place. He was not directed to do the specific work necessary to protect himself from the dangers and risks caused by the void. Nor was he supplied with scaffolding or other appropriate material. Additionally, the obligations of co-ordinating and supervising the work remained with Maggiotto, and these obligations had direct relevance to the safety of the work Gordon was instructed to perform. It follows that the performance of Maggiotto's duties under Regulation 73 was not 'wholly delegated' to Gordon. Maggiotto still had to do construction work in regard to unit 33. That work involved co-ordinating and supervising the activities to be performed by Gordon and others, and supplying the necessary materials to Gordon. [39] There can be no doubt but that Maggiotto breached the duties imposed on it by reg 73." 53 If it is not otherwise clear, Maggiotto had been engaged as a head contractor to construct a number of home units and had engaged Gordon to perform carpentry work to fit out some of the home units. Gordon was an experienced carpenter and was working on a particular unit which required him to work around and above a void. In order to perform that work Gordon climbed along a ledge which was approximately 3 inches wide, climbed up to a workspace and, when he, having completed the work, sought to lower himself back on to the ledge, he slipped, tumbled backwards and fell, injuring himself in the process. 54 As has been made clear in subsequent judgments of the Court of Appeal, with some of which I will shortly deal, the Court of Appeal considers itself bound by the analysis of Ipp AJA in Maggiotto repeated above. A fortiori it is binding on me. Whether or not it is binding, the analysis is, with wholly unfeigned respect, correct. Factually it was a head contractor involved, in significant respects, in the construction of home units, part of which construction was sub-contracted to Gordon. Further, the head contractor was still required to perform work in and around the area in which the sub-contractor was working and the head contractor's work would have involved compliance with Regulation 73. 55 In Kolodziejczyk, the Court of Appeal, once more, had occasion to deal with the issue of Regulation 73. The factual circumstance was that a "builder" sub-contracted to partners the performance of cladding work in the construction of the second storey of a house. The Court of Appeal (Heydon JA, with whom Ipp and Davies AJJA agreed) recited the findings of fact of the trial judge part of which included a finding that the partners "had the responsibility of carrying out the actual cladding work at the house in their own way and in their own time and were not subject to actual supervision or direction as to when and/or how the work was to be done. The partners used their own tools and ladders and also their vast knowledge and experience in doing work of this type." The same passage had earlier remarked that the "defendant at all times had the responsibility of arranging for all materials to be used at the house and additional equipment such as scaffolding reasonably requested by the partners being on site." However, it is clear from the facts before the Court and recited that the responsibility for additional equipment was confined to that requested by the partners who, in turn, were wholly responsible for the manner (including safety precautions) in which the work was performed. Heydon JA, after noting an ambiguity in the finding of fact by the trial judge, remarked: "[22] … Whatever the correct construction of the first passage, the events relating to problems (a) and (b) are not inconsistent with it because queries by Andrew as to whether the partners could fix a problem and encouragement by Andrew to the partners for them to solve a problem for themselves, do not equate to either supervision or direction." 56 His Honour then dealt at length with common law negligence, which, for present purposes I do not recite, and with the alleged breach of statutory duty, being a breach of Regulation 73 and 74. At [70], Heydon JA cited a passage from Maggiotto being paragraphs [16] to [29]. His Honour considered himself bound by the ratio in Maggiotto and then distinguished it in the following passage: "[73] The first submission of the plaintiff was that there were factual similarities between Maggiotto's case and the present case, namely that in both cases the head contractor supplied materials. That similarity exists, but there are three very significant differences. The first difference is that in that case the head contractor had to coordinate and supervise the activities of a large number of tradesmen in constructing from scratch thirty five home units, and act as 'project manager'; in this case the activity involved was simply placing cladding on the walls (the windows having been dealt with weeks earlier, and no other trade being involved). The second difference is that in that case the head contractor gave directions as to when, where and in what order the work was to be done, and Gordon admitted that he was under the head contractor's control while in this, according to the findings of the trial judge which are in part unchallenged and in part not successfully challenged, the partners determined for themselves the manner in which they did the work, the hours and days worked, the order in which the work was done and which one did which part of the work; they were not subject to any instruction or directions by the defendant as to how and when they carried out the work, nor to any supervision. The third difference is that in that case the head contractor supplied materials when needed; in this case the head contractor did not supply them until a request was made by the partners. In Maggiotto's case it could be said that the head contractor had an absolute obligation to ensure that materials, including the missing stairs which, had they been there, would have prevented the plaintiff's fall, were there; here the head contractor's only obligation was to supply what was asked for and not until it was asked for." 57 An analysis of the three differences adumbrated by Heydon JA, because of which a different result ensued, confirms the similarity between these present proceedings and the factual circumstances in Maggiotto. I will deal with them shortly.

(i) The building manager, Mr Bruno Bagnara, an employee of the defendant, was coordinating and supervising the activity of the plaintiff. True, this was not a case involving a large number of eclectic trades, but coordination and supervision was in fact required and undertaken.

(ii) Mr Bagnara gave directions as to when, where and in what order the work was to be done and how it was to be done.

(iii) Mr Bagnara determined the materials needed, supplied the materials when needed (in this case the ladder) and directed its use and the manner of its use as well as the manner of the plaintiff's access to the roof area. 58 In Bhambra, supra, the Court of Appeal (Santow JA, with McColl JA and Davies AJA agreed) again recited the reconciliation of the judgments in Buckman by Ipp AJA in Maggiotto and accepted that the judgments in Buckman could be reconciled in the manner suggested in Maggiotto. Nevertheless his Honour came to the view that the defendant was not liable for any breach of Regulation 73. It should be noted that the plaintiff/appellant was refused permission to file a Notice of Contention raising a breach of Regulation 74. 59 In Bhambra the circumstance with which the Court of Appeal was dealing was that the injured party, a carpenter, was engaged to finish off carpentry work in the defendants' home. The defendants were husband and wife who together owned the home. The carpentry work was work that remained after a previous builder had concluded (either successfully or otherwise) a substantial renovation and reconstruction work. Of the husband and wife, the wife held an owner-builder's licence and the husband did not. Neither of them had any expertise in building. The carpenter fell from the first floor and injured himself in circumstances where there were no safety rails installed. The cause of the accident however was found by the trial judge to be that the fact that the carpenter had slipped and tripped on a piece of board, being a loose board, which was present as a result of the carpenter's own negligent workmanship or that of his labourer. The Court held that the husband and wife (even though one of them had an owner-builder licence) had wholly delegated the task, including any safety issues associated with it, to the experienced carpenter and that the defendants were not, because of that delegation, liable for breach of the Regulation. 60 I turn next to the judgment of the Court of Appeal in Todorovic v Moussa, supra. In that case, the Court (Tobias JA, with whom Mason P and Brownie AJA agreed) held that the head contractor was liable for a breach of Regulation 73. Justice Tobias once more cited a passage from Buckman on which the primary Judge relied to determine that the head contractor did not carry out building work. 61 The facts, set out by Tobias JA, were that the defendant, Mr Moussa, was a licensed builder who was developing 3 blocks of land. The plaintiff/appellant was engaged as a 'gyprocker' ("gyprock" being a brand name for gypsum plasterboard used for wall or ceiling panels) who had contracted to undertake all board fixing. The plaintiff/appellant descended a ladder which the respondent/defendant had placed within the frame of one of the dwellings. The ladder had been erected to enable access by tradespersons from the ground to the first floor. He was injured when the ladder slipped and the plaintiff/appellant fell some 3 metres onto a concrete floor. 62 Justice Tobias recited a submission put to the Court on the basis of Maggiotto, supra, which the submission contended was indistinguishable from the case then before the Court. His Honour said: "[22] It was thus submitted that at the time the appellant fell from the ladder supplied and put in place by Mr Moussa, the respondents remained engaged in ' building work ' and, therefore, ' construction work ' for the purposes of Regulation 73. Mr Moussa was the ' developer and manager of the project ' and was on site every day in a supervisory capacity. In providing the ladder for the purpose of the appellant gaining access to the first floor of the structure, the respondents must have assumed the responsibility of discharging the statutory duty of providing and maintaining safe means of access to the place where the appellant was required to work. [23] The respondents maintained that they were not engaged in ' building work ' as the appellant was carrying out the relevant work (it having been delegated to him by Mr Moussa). Although it was accepted that the Chief Justice in Buckman was not ruling out the possibility that a head contractor could never be doing building work at the same time as a sub-contractor, especially where the former maintained a supervisory or interventionist role in the work of the sub-contractor, it was submitted that in the present case the respondents had delegated the whole of the relevant task to the appellant so that their role was neither interventionist nor active but miniscule. Reliance was placed upon the decision of Santow JA in Bhambra v Roet [2003] NSWCA 393 at [38]-[49]. It was contended that the role of Mr Moussa in the present case was similar to the role of Mr and Mrs Bhambra in that case." 63 After then reciting paragraphs 20 to 29 from Maggiotto and referring to Kolodziejczyk his Honour summarised and compared the factual circumstances in the judgment of Ipp AJA in Maggiotto and the judgment of Heydon JA in Kolodziejczyk. Justice Tobias said: "[26] In Kolodziejczyk v Grandview Pty Limited [2002] NSWCA 267, Heydon JA with whom Ipp A-JA agreed, cited with approval the above passages from the judgment of Ipp A-JA in Maggiotto . His Honour also cited (at [71]) the passages of his judgment where Ipp A-JA had found that Maggiotto, the head contractor, had been involved in a great deal of co-ordination and supervision of the different trades required to complete the building work on the site. Further, Maggiotto had supplied the materials necessary for the tradesmen to carry out their work. Consequently, Ipp A-JA had considered that Maggiotto was performing building work within the meaning of the definition in s 3 of the Act. Accordingly, the performance of Maggiotto's duties under Regulation 73 was not ' wholly delegated ' to the sub-contractor, Gordon. [27] Heydon JA (at [72]) accepted that the explanation by Ipp A-JA in Maggiotto of what was said in Buckman was an essential part of the reasoning which led to his conclusion in that case, and as Meagher and Stein JJA had agreed with him, his Honour's understanding of what the High Court decided was part of the ratio decidendi of Maggiotto that bound this Court. In my opinion it still does. [28] In Kolodziejczyk , Heydon JA rejected the submission of the plaintiff that there were factual similarities between that case and Maggiotto . One of the differences was that in Maggiotto , the head contractor supplied materials where needed by the sub-contractors whereas in Kolodziejczyk , the head contractor did not supply materials until a request was made by the sub-contractor. Accordingly, his Honour considered (at [73]) that in Maggiotto , the head contractor had an absolute obligation to ensure that materials, including the missing stairs (which would have prevented the plaintiff's fall) were in place. On the other hand, in Kolodziejczyk , the head contractor's only obligation was to supply what was asked for but not until it was asked for. [29] Again, in Kolodziejczyk the plaintiff had submitted (at [79]) that as in Maggiotto , there was a delegation by the head contractor only of specific tasks to the sub-contractor but not the ancillary work or preliminary steps necessary to ensure the safety of those working on the delegated task. That analogy was rejected by Heydon JA (at [81]) because the defendant had delegated to the sub-contractors the performance of the totality of the relevant task, namely, erecting cladding, on condition that if they judged it necessary to use scaffolding, they were to request it and the defendant would supply it. His Honour said (at [81]): 'While the provision of scaffolding for carrying out part of the work is capable of being analysed as a 'preliminary step' or as 'ancillary work' necessary to ensure the safety of the [sub-contractors], the trial judge found that the actual task in the course of which the plaintiff fell did not require the use of scaffolding, but could be carried out on the ladder actually used provided the [sub-contractors] adopted the simple measures of securing it at the top and bottom.' Accordingly, the plaintiff's case failed as there was a full delegation of the relevant construction work and everything connected with it." 64 His Honour then referred to Bhambra, supra and to Multiplex Constructions Pty Ltd v Lopez [2004] NSWCA 319. His Honour said: "[34] It may be noted that in Multiplex Constructions (NSW) Pty Limited v Lopez [2004] NSWCA 319, Santow JA, with whom Beazley JA agreed, observed (at [60]) that it did not 'affect the application of Regulation 73(2) that there be two entities thereby rendered responsible for compliance with Regulation 73(2), namely head contractor and sub-contractor where each carries out the work in accordance with their respective roles.'" 65 His Honour went on to say: "[36] In the present case, not only was there no delegation by the respondents to the appellant of the task of providing a safe means of access from the ground to the first floor of the structure upon which the appellant was required to carry out the work that was in fact delegated to him, but also the respondent, Mr Moussa, as head contractor actually carried out that work himself. [37] There can be no doubt, and it was not contested, that the provision by Mr Moussa of the ladder to enable tradesmen to gain access from the ground to the first floor of the structure in order to enable them to carry out their delegated tasks, and without which they would not have been able to do so, was ' building work ' and, therefore, ' construction work' . As Santow JA pointed out in the passage of his judgment in Bhambra cited in [33] above, the statutory duty only arises on the occasion when a person actually carries out construction work and necessarily falls on that person who does so. In the present case, it was the respondents who actually carried out the work of providing a means of access by the placing of the ladder in the proposed stairwell of the structure. The appellant was never engaged to carry out that task. Accordingly, it must follow that the statutory duty fell upon the respondents, when providing a means of access from the ground to the upper floor of the structure where the appellant was required to work, to do so in a manner which was safe. [38] I thus return to and respectfully adopt and adapt what Ipp A-JA said in Maggiotto in [29] of his judgment recorded above (at [25]). The respondents delegated to the appellant the specific task of fixing plasterboard to the internal walls and ceilings of the structure. They did not delegate to him the ancillary or preliminary steps of providing and maintaining a means of access between the ground and first floor of the structure to enable the appellant to gain access to and from the first floor where he was required to carry out his delegated task. In fact, the respondents undertook the work necessary to perform that ancillary or preliminary step. In so doing they were bound to comply with Regulation 73(2) to ensure that the means of access so provided was safe. In that duty, they failed. [39] Accordingly, in my opinion the primary judge erred when he held that the respondents were not relevantly carrying out building work because the provision of the ladder was not the gyprocking work which only the appellant, and not the respondent, was actually carrying out. What his Honour, with respect, has overlooked is that the erection of the ladder for the purpose of providing a means of access for tradesmen to enable them to perform their delegated tasks was itself building work in respect of which the statutory duty referred to in Regulation 73 applied. It follows that the appellant was entitled to succeed in the proceedings against the respondents on the basis of breach of statutory duty." 66 I return to the expression of opinion in [35], infra, that the issues of whether construction work is being "carried out" and the definition of "building work" are interwoven. In the above passage, the analysis of Tobias JA makes clear how the two issues are interrelated. The issue of whether there has been a total delegation of the work is referred to in Buckman by Jacobs J as "a particular contractual obligation expressed or necessarily to be implied from the nature of the work to carry out the preliminary work necessary to ensure that when he and those under him are engaged in the building work they will be so engaged in conditions which satisfy the statutory duty" (at 446). Where building work is left to be done and it is relevant to the issues of safety to which the regulation goes (in Todorovic the erection of the ladder to gain access to the upper floors), then the work in question has not been "wholly delegated". Another means of analysing the issue is that the work not delegated, e.g. the work undertaken in Todorovic by the head contractor, is itself within the definition of "building work" and "liability" for a breach of Regulation 73 arises. 67 In Bhambra, no work was done by the husband and wife. In Kolodziejczyk the only 'work' was the delivery of materials requested. In each of the other cases (Maggiotto, Todorovic and Lenz) work was done which was relevant building work. In turn, this meant that all of the building work in question had not been delegated. 68 I have not as yet dealt in detail with the judgment of the Court of Appeal in Lenz v Trustees of the Catholic Church, supra. Given the above summary and the reference to earlier cases it is unnecessary to repeat at length that which fell from the Court of Appeal (Mason P, with whom Santow and Basten JJA agreed). Nevertheless it is relevant to deal with the summary by Mason P of the cases and the principles adopted by them. His Honour the President said: "[59] It follows that reg 73 does not apply to a head contractor who has wholly delegated the task in question to a sub-contractor ( Buckman at 428; Almeida at [117] (Santow AJA)). Independent contractors who themselves carry out the work they have contracted to do are not thereby the agents of the head contractor who thereby expose the head contractor to reg 73's obligations with reference to the construction work they are performing ( Buckman at 428; Almeida at [117]; Maggiotto at [16]). … [61] In some circumstances, a head contractor or building owner who has otherwise delegated the performance of particular construction work to a sub-contractor, may participate in that building work and thereby become one of the persons carrying out the construction work ( Maggiotto at [24]-[25]). This was the basis for liability under reg 73 found against the head contractor in Maggiotto …. [62] Similarly, a head contractor fell within reg 73 when it engaged in an activity so 'intimately connected' with the construction activity (organising 'dewatering' ) as to constitute part of it ( Multiplex ); when an employee of the head contractor actually participated in the building activity in question ( Buckman ); and when the head contractor became involved in coordination and supervision of different trades on the site or the supply of building materials to sub-contractors ( Maggiotto at [36]; Zahner v Andreas Pty Ltd [2001] NSWCA 352 at [33]-[34]; Todorovic at [26]-[27]; F & D Normoyle at [20]-[26]). See also Mason J's reference to participation 'by act or approval' in Buckman at 444. The line between delegation and continuing participation on the head contractor's part may be a fine one on the facts (see for example how Maggiotto was distinguished in Kolodziejczyk at [73], [83]). [63] Furthermore, when a head contractor delegates a particular aspect of building work, circumstances may arise that require preliminary steps or ancillary work to be undertaken to ensure the safety of those who will be working on the delegated task. The task of doing the work necessary to complete the preliminary steps or ancillary work may not be within the work delegated. In such a situation, were the head contractor not to be duty bound to comply with reg 73 in regard to the ancillary work or preliminary steps, there would be a gap in the security net that the regulation is intended to provide. The safety of all involved in the total building enterprise would then not be secured. It is a question of fact in each case as to whether the sub-contractor has been instructed to perform the preliminary steps as well as the work the subject of the express instructions ( Buckman at 446 (Jacobs J); Maggiotto at [26]-[29], Kolodziejczyk at [72]; Todorovic at [27]). [64] If no more can be said than that the building is for and at the expense of a person, then reg 73 does not impose obligations on that person ( Castellan v Electric Power Transmission Pty Ltd (1966) 84 WN (NSW) 502 at 504). The activities of owner-builders who engage in rudimentary coordination of various trades or who occasionally act in the capacity of builder's labourer are not generally sufficient to bring such persons within the ambit of reg 73 ( Bhambra at [41]-[48]). [65] In contrast to reg 73, reg 74 is directed at 'the person in charge of the construction work' . It is always necessary to identify the relevant construction work. However, a head contractor, with or without an interposed sub-contractor, is usually 'the person in charge of the construction work'. This is borne out by the language of reg 74 and is consistent with the relatively passive obligation to 'provide' items of safety equipment that forms the main content of the regulation." 69 For the reasons set out above, particularly at paragraphs [56] and [57], infra, and the clear analogy with the factual circumstance in Todorovic, it is clear that the defendant did not wholly delegate the building work in question to the plaintiff; it directed the plaintiff as to the time of the performance of the work; it provided at its own initiative the plaintiff's means of access to the work space; and it directed the plaintiff to descend to the roof and take the measurements, in which circumstance the defendant itself engaged in building work through its employee Mr Bagnara. 70 The defendant submits that a distinction ought to be drawn between a contractor (or head contractor) who is engaged in the building industry and an occupier, which, it says, better describes the defendant's status. 71 There are answers to this submission: first, the Act and Regulations make no such distinction; secondly, the fact that the defendant is the occupier of the premises does not, in the circumstances of this case, signify that the defendant is not in the building industry and in the same position as a "usual" head contractor. 72 The mere fact that the defendant is predominately providing aged care residential facilities does not mean that it cannot also be engaged in the building industry, or in building activities. The employment of one or more persons whose duties are confined to building maintenance, the organisation of contractors, their coordination and direction means that, at least in relation to the work of Mr Bagnara (and/or any other such person) the defendant is engaged in the building industry: see, by analogy, R v Central Reference Board; ex parte Theiss (1948) 77 CLR 123 and R v Isaac; ex parte TWU (1985) 159 CLR 323. 73 The defendant is in a different position to an occupier whose organisational structure did not involve the employment of persons full-time on organising construction work (as defined). 74 There is, however, some force in the defendant's submission in this regard and it relates to the approach suggested by Jacobs J in Buckman. While, in the case of a building company, one may well be less likely to infer a full delegation of all preliminary steps involving safety, a court may be less likely to infer a retention of responsibility (or involvement in the building work) in the case of the contractual arrangement involving a householder or occupier. 75 This will not necessarily exempt all householders, but it would exempt the vast majority. As for occupiers who are generally involved in building work, it will be a matter, as it always is, for an examination of their role in the building work being undertaken. 76 I make it clear that the reference in this analysis to the term "building industry" is not intended to suggest a different test or different wording than "building work". It is used to denote activity beyond the particular work in question which would otherwise be "building work" (as defined) undertaken personally or by servants or agents. 77 There is one further complication, in relation to the operation of Regulations 73 and 74. Earlier in this judgment I referred to the question of what is building work. In particular I did so in an analysis of the judgment of Tobias JA in Todorovi. That analysis dealt with the delineation between different aspects of what was undeniably construction work. In this case, the defendant argues that the measurement of the roof for the purpose of a quotation for painting work is not building work and therefore not construction work. 78 As I understand the argument it is submitted by the defendant that the act of preparing a quote, or measuring for the purpose of preparing a quote [or on direction simply for the purpose of providing the measurements], does not constitute building work within the meaning of section 3 of the Construction Safety Act 1912 (NSW) and therefore within the meaning of Regulations 73 and 74 made pursuant thereto. Therefore, no liability arises and, for that matter, the Regulations do not apply to the work in question. 79 To some extent the question is alluded to in the statement already cited in Todorovic. The placing of a ladder adjacent to a building (or a floor of a building) for the purposes of ascending that ladder may or may not be building work. If a householder (or a contractor engaged by the householder) places a ladder adjacent to a house for the purpose, for example, of removing a tennis ball from a gutter or a cat from a roof, it is not building work and, therefore, not construction work. If on the other hand the same ladder is placed by the same persons for the purpose of repairing the roof, the placing of the ladder is construction work. 80 To take another example, the sweeping of a front yard of a house would not, generally, be construction work for the purposes of either the Act or the Regulations. However, if the yard is being swept by a builder's labourer and the house is in the process of being constructed, it almost certainly would be construction work. 81 The definition of "building work" in section 3 of the Act must be understood bearing in mind the purpose for which the legislation has been promulgated: Project Blue Sky v ABA (1998) 194 CLR 355 at [69], [70] and [78]. Thus, even though a strict reading of the definition of building work might include a cleaning contractor engaged for the purpose of cleaning a courthouse, it being "work in … cleaning … that … is done in relation to a building … at or adjacent to the site thereof," one would not generally accept, except in the case of the cleaning being done in connection with the erection or alteration of the courthouse, that the work was building work or was intended to be covered by the Construction Safety Act 1912 (NSW). 82 Likewise, measuring a roof, or any other part of a building, may not, without more, be included in the definition of building work. However, the task of construing an Act is not confined to giving each word a meaning. Otherwise one would use a dictionary not a judge. Where, as here, the measurement is done for the purpose of repairing or painting the building or structure, or the roof of the building or structure, it is building work. This is so whether the purpose has been effected or whether it is certain. 83 Thus, in the example used earlier, if a contractor places a ladder adjacent to a house and secures it to the house for the purpose of repairing a roof, or painting a roof, and a person falls injuring themselves in circumstances which otherwise would be covered by a breach of Regulation 73 or 74, the Regulation applies. The Regulation applies notwithstanding that the owner/occupier may thereafter not proceed with the repair and/or painting. This is because the ladder is fixed for the purpose of repairing and/or painting and therefore the fixing of the ladder is "work in" said repairing and/or painting. 84 Likewise, while a measurement unrelated to any other building work may not itself be building work, in the circumstances of this case, where the defendant had decided to repair and/or paint the roof of the building and directed the plaintiff to measure the roof for that purpose, the measurement is work in repairing and/or painting the roof. 85 The defendant submits that mere preparatory work involving inspections, travelling to or on to the site and the giving of quotes "quite clearly does not fall within the definition of building work". This is only partly so. Travelling to the site cannot be building work because the work must be done at the site of the building. Were it otherwise the manufacture to specific orders of windows for a particular building would, even when performed in a factory, be building work and covered by the Regulations. 86 However, it is impossible (or extremely difficult and inefficient) to perform any building work without measuring for the purpose of determining how much material is required. Measuring a roof to determine how much paint is required (and how many days will be required to paint it) is a necessary and essential part of painting and is properly within the term "building work" and therefore within the term "construction work". 87 Contrary to the submission of the defendant, the definition of "building work" is deliberately broad and is not confined to functions that "alter the substance of the subject of the work". Building work includes cleaning for example. The resolution of a question as to whether any particular work is "building work" is resolved by determining whether the work is "an activity so 'intimately connected' with the construction activity … as to constitute part of it" (Lenz at [62] citing Multiplex). 88 The proper approach to the construction of the Act in this regard would not support the exclusion of this work. The definition of "building work" has, as already stated, not been the subject of extensive analysis. The definition has interesting aspects: first, the use of the gerundival form in describing the aspects of "building work" included e.g. constructing etc; secondly, the definition, by utilising the word "means", is exclusive in effect (cf the definition of "owner" and see R v Gray; ex parte Marsh (1985) 157 CLR 351 at 364-365); thirdly, the adumbrated aspects of "building work" are extremely broad and some at least are overlapping; fourthly, the definition does not confine the work to a "building" but includes a "structure"; fifthly, the work is limited to such work done at or adjacent to the site but includes any of the adumbrated aspects "in relation to" a building; lastly, and perhaps most importantly, in dealing with this aspect of the proceedings, "building work" is not defined as "constructing … etc", but as "work in constructing … etc". 89 The use of the term "work in" has much significance. Measuring a piece of timber for another person to cut and a third person to fix to a door frame may not be constructing, erecting, installing etc, but it is "work in constructing …" etc. 90 The word "in" when used with a verbal substantive such as "painting" means "in relation or reference to" and "in the matter, affair or province of" the activity. In R v Neil; ex parte Cinema International (1976) 134 CLR 27, Jacobs J said: "It is necessary to decide whether the preposition 'in' as used in the phrase 'employed in any kind of amusement' is used simply as a preposition of location (See entry I in the Oxford English Dictionary under the definition of 'in') or as a preposition of occupation or engagement (See entry II.11 where it is noted that it is so used chiefly with nouns of action and the verbal substantives and II.17 where it is described as 'expressing reference or relation to something: In reference or regard to; in the case of, in the matter, affair or province'). The substantive 'amusement' may be a verbal substantive, i.e. the action or activity of amusing, or it may be used in a concrete sense as the thing which amuses. If 'amusement' be used in the latter sense, the preposition 'in' should probably be held to be a preposition of location; on the other hand, if the word 'amusement' be used in the former sense then the preposition should be read as a preposition of occupation or engagement or as expressing reference or relation to something. In my opinion the word 'amusement' is not used in the concrete sense of the thing which amuses--the play, or the film or whatever--and the preposition 'in' is not used as a preposition of location. That would be a very narrow construction of the word in the context. It would mean that an employee would only be employed in an amusement if he were physically participant in the play or film or other entertainment. 'Amusement' is here used as a verbal substantive. It is used in the active sense to describe the action or activity of amusing. The preposition 'in' is used not in the sense of location but to express reference or relation to the action or activity of amusing--in the matter or province of that action or activity. That the word 'amusement' should be held to mean 'the action or activity of amusing' rather than the concrete result of the action is assisted by the whole context of the eligibility clause. That clause covers all aspects of motion picture production. As well, it covers motion picture exhibition. It would seem to me to be a strange result if the employees engaged in the acts which fall to be done between production and exhibition were found to be excluded from eligibility. This context also assists in giving the preposition 'in' the meaning 'in relation or reference to' and 'in the matter, affair or province of' rather than a merely locational sense." 91 The above judgment of Jacobs J was in dissent on the meaning of the word "amusement". However, the force of the cited observations and the correctness of the analysis is not affected by his Honour's dissent on different issues. 92 The Court of Appeal (per Beazley JA, with whom MW Campbell AJA agreed) took the view that, in the context of work and/or employment and/or an industry, "in or about" connotes a sufficient connection with the business that the words qualify, as well as physical proximity thereto: Ellavale Engineering v Pilgrim [2005] NSWCA 272 at [70]-[75]. 93 Ultimately, the use of the words "work in" qualifying a verbal substantive, such as "painting", extends "painting" to include work "in relation to painting" (see Jacobs J, in R v Neil, supra), which would include measuring for a quote therefor, provided, as the definition makes clear, it is performed at or adjacent to the site. See also the use of the test "intimately connected" by Mason P in Lenz at [62] cited and referred to at [68] and [86], infra. 94 For the above reasons, the defendant is responsible for the duties imposed by Regulation 73, and most particularly Regulation 73(3), with which the defendant has not complied. As a consequence of that finding it is strictly unnecessary to deal with the other issues of liability. It is also unnecessary to deal with contributory negligence. I will, however, deal with each of them as briefly as possible.

Regulation 74 95 I reiterate the conclusion of fact at paragraphs [30] and [31], infra. It is either a finding I make or an inference I draw that: the requested measuring was for the purpose of repairing and/or painting the roof; that the method of gaining access to the roof and the requirement to measure were directed by Mr Bagnara in the course of his employment (see [17], [18] and [19], infra); and that the quote sought was procedural and did not affect the intimate connection between the measuring and the repair/painting. There were no considerations by the defendant other than that the plaintiff would be instructed to complete the task and that the purpose of the measurement and quote was to repair and/or paint the roof. In those circumstance the work was "work in … repairing … [and/or] … painting" the building and it was performed at or adjacent to the site of the building. It was "building work". 96 I also draw the inference from the conversations and circumstances surrounding them that Mr Bagnara, and, therefore, the defendant, remained in charge of the building work. 97 Each of the aforementioned inferences are available. They are matters on which Mr Bagnara (and other officers or employees of the defendant) could testify and did not. I am more readily able to draw the inferences and I do so. I also draw the inference that any evidence that Mr Bagnara might have given would not have assisted the defendant's case. 98 From the foregoing analysis it is unnecessary to deal, again, with the submission that the work performed by the plaintiff was not building work within the meaning of the Construction Safety Act 1912 (NSW) and the Regulations. Further, as is made clear from the citation from Lenz, supra, at [67], infra, particularly the passage at [65] of Lenz, Regulation 74 is directed at the person in charge of the construction work. As Mason P makes clear, the "head contractor" is usually the person in charge of the construction work. As made clear in paragraphs [76] and [77], infra, Mr Bagnara, and the defendant, remained in charge of the building work and was, therefore, the person in charge of the construction work for the purpose of Regulation 74. 99 There can be no doubt that there was no adequate hand-hold or foot-hold and as a consequence that any person engaged in construction work on that roof or in that area was exposed to a risk of a fall. In those circumstance the defendant was required to provide a safety belt, a safety line or a safety harness and comply with the provisions of Regulation 74(1). 100 The expert report of Joy Consulting Group (Exhibit L) confirms what is otherwise obvious and stated above: "Fencing the edge of the lower main roof … would provide the best level of protection against falling off the edge for any person entering or working on the roof area. If this roof area was accessed on other than an infrequent basis, fencing should have been provided. If it was accessed only on the limited and infrequent basis, alternative safety provisions could have been applied, such as those proposed by Regulation 74(1)(a). Given that access to the part of the roof from which Mr Takacs fell was probably required relatively infrequently, the use of an appropriate, approved 'industrial fall-arrest device' would have provided a practical and cost-effective safety solution which could have prevented or arrested Mr Takacs' fall." 101 Given the conversation recounted at [20], infra, it is not so clear that the roof area was "accessed infrequently". Nevertheless, in the absence of a fence or proper rail, a safety line and harness complying with Regulation 74 was required to be provided by the person in charge. 102 Even if, contrary to the earlier finding, the defendant had wholly delegated the building work in question so that it had no liability under Regulation 73, it was still "in charge of the construction work" and, in accordance with the analysis of Mason P (Lenz at [65]), was required to provide the items of safety equipment. 103 I hold that the defendant has failed to comply with the provisions of Regulation 74(1)(a) of the Construction Safety Regulations 1950 (NSW). 104 The defendant does not submit, if Regulations 73 and 74 apply to the defendant, that there has not been a breach of or non-compliance with those provisions. Once it is determined that the Regulation applies to the defendant, the non-compliance with the requirements of the Regulation is manifest. 105 Lastly on this issue I deal with an alternative means of determining whether the defendant is liable under Regulation 73. This judgment earlier recites a passage from the judgment in Buckman particularly at [42], [44], [45] and [46]. 106 If the test for liability under Regulation 73 were, as some of the statements in Buckman seem to indicate, whether the person alleged to be in breach is vicariously liable for the conduct of the person performing the work, it may be that, even on that strict view, the defendant would be liable. In this case the defendant has expressly directed the plaintiff and the plaintiff performed tasks from which the defendant gained a direct benefit: see Hollis v Vabu (2001) 207 CLR 21 at 58-60, [96]-[100], per McHugh J (the other members of the Court considering that it was not a case appropriate for the reconsideration of issues of vicarious liability).

107 In that regard I refer to the plaintiff's submission at [2.4], repeated at [113] below and to [94], infra, as to the factual basis for the immediately preceding paragraph.

Negligence 108 The circumstances surrounding the plaintiff's access to the roof have already been set out. The defendant was and is the occupier of the land and building in question. The defendant directed (or at best invited) the plaintiff to descend by the ladder (suggested, provided and erected by the defendant) to a roof on which the plaintiff was directed or requested to take measurements. In those circumstances the defendant owed the plaintiff a duty of care. That duty of care was to take reasonable care to avoid a foreseeable risk of injury to the plaintiff: Australian Safeway Stores Pty Limited v Zaluzna (1987) 162 CLR 479. After referring to the judgment of the High Court in Papatonakis v ATC (1985) 156 CLR 7, the High Court brought the differing obligations of an occupier into conformity with the general law of negligence. The joint judgment (Mason, Wilson, Deane and Dawson JJ) said: "… The fact that the respondent was a lawful entrant upon the land of the appellant establishes a relationship between them which of itself suffices to give rise to a duty on the part of the appellant to take reasonable care to avoid a foreseeable risk of injury to the respondent." 109 The defendant has other bases from which a duty of care arises. These were discussed in Thompson v Woolworths (2005) 221 CLR 234. In that judgment the High Court said: "[23] It was not in question that the respondent owed a duty of care to the appellant, although there was a disagreement about the appropriate formulation of that duty. [24] The status of the respondent as occupier of the land on which the appellant was injured was one aspect of the relationship that gave rise to a duty of care. It gave the respondent a measure of control that is regarded by the law as important in identifying the existence and nature of a duty of care ( Commissioner for Railways (NSW) v McDermott [1967] 1 AC 169 at 186; Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254 at 263 [18], 270 [42], 292 [112]). There was, however, more to the relationship than that, and, as was agreed on both sides, the problem was not one that concerned only the physical condition of the respondent's premises. There was a time when the common law sought to define with precision the duty of care owed by an occupier of land, and treated the content of the duty as variable according to categories fixed by reference to the status of entrants (See, eg, Lipman v Clendinnen (1932) 46 CLR 550 at 554-556, per Dixon J. The common law has since rejected the approach of seeking to construct a series of special duties by reference to different categories of entrant ( Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479). The problems involved in the former approach included the rigidity of the classification of entrants, and the artificiality of distinguishing between the static condition of premises and activities conducted on the premises. That is not to say, however, that the law now disregards any aspect of the relationship between the parties other than that of occupier and entrant. On the contrary, other aspects of the relationship may be important, as considerations relevant to a judgment about what reasonableness requires of a defendant, a judgment usually made in the context of deciding breach of duty (negligence). [25] Even in the days when the content of an occupier's duty of care was defined by reference to fixed categories, within those categories the requirements of reasonableness were affected by a variety of considerations. Mason J, in Papatonakis v Australian Telecommunications Commission (1985) 156 CLR 7 at 20, said: 'The content of the occupier's duty to exercise reasonable care for the safety of an invitee must, of course, vary with the circumstances including the degree of knowledge or skill which may reasonably be expected of the invitee and the purpose for which the invitee enters upon the premises.' [26] The purpose for which, and the circumstances in which, the appellant was on the respondent's land, constituted a significant aspect of the relationship between them. The appellant, in the pursuit of her own business, was delivering goods to the respondent for the purpose of sale in the course of the respondent's business. To do that, she was required to conform to a delivery system established by the respondent. She was directed by the respondent when, where, and by what method she was to deliver. She was required to arrive between 5 am and 5.30 am, and to drive her truck along the laneway leading up to the respondent's loading dock. She was required to unload at a designated place, where the goods were to be counted and accepted by the respondent's storeman. Since the respondent established the system to which the appellant was required to conform, the respondent's duty covered not only the static condition of the premises but also the system of delivery. Some aspects of what went on were within the independent discretion of the appellant. She was not the respondent's employee. Within a fairly narrow time frame, she could choose when she made her deliveries. She could choose what kind of delivery vehicle suited her purpose. Decisions about the management of the vehicle, and the method of unloading, were largely left to her." 110 The defendant owed a duty of care to the plaintiff and the only real question then is whether that duty was breached. Such a question was also the subject of the judgment in Thompson, supra. In Thompson, as in this case, the defendant argued the obviousness of the risk and that, therefore, no breach of duty occurred. Like Thompson, the plaintiff in these proceedings does not argue that the lack of proper fencing, for example, was not the subject of a warning or was not a risk of which the plaintiff was unaware. There is no issue here of a breach of duty by a failure to warn. Thereafter the facts in this case are dissimilar to that in Thompson. However, the result must be the same. 111 That which was done by the plaintiff was, at the direction, suggestion and/or invitation of the defendant. These were not implicit; it was a direct statement to the plaintiff. The plaintiff carried out the direction and/or request for the benefit of the defendant. In the circumstances of this case, it cannot be reasonable to expect a person in the position of the plaintiff not to have done that which was required of him. The question, in this case, is whether the defendant had in place a system which included arrangements for work of the kind here required. The answer it that it did not. 112 The defendant did not take reasonable steps available to it which were necessary for the purpose of taking reasonable care to avoid a foreseeable risk to the plaintiff. Unless it can be said that the obviousness of the risk, if it were obvious, was such that there was no requirement to take reasonable steps to obviate that risk, any alleged obviousness must go only to contributory negligence. 113 The only obvious aspect of the risk was the lack of fencing or guardrails. But the lack of fencing or guardrails was only one part, and perhaps not a particularly significant part, of the breach of the duty of care alleged by the plaintiff. 114 In his submissions the plaintiff said: "[2.4] As occupier of the premises the defendant, via Mr Bagnara, operated a system of employing tradesman, including the plaintiff, to carry out building work on its premises. On each of four occasions before the incident in question when he employed the plaintiff to carry out work on its various premises, Mr Bagnara would contact the plaintiff and request a quotation. The plaintiff would then attend the relevant premises, inspect the job and provide a quotation which would then be provided to Mr Bagnara. Upon acceptance of the quotation the plaintiff would then carry out the relevant work at Mr Bagnara's request (T 15-17). It was clear that the obtaining of a quotation was intimately connected with and an integral part of the process by which the defendant carried out building work on its premises. [2.5] Mr Bagnara, on behalf of the defendant, also exercised control over what occurred on 4 May 1999. It was he who took the plaintiff to the roof level and provided access to the air conditioning platform through a locked door. It was he who requested that the plaintiff provide a quotation for painting the roof area notwithstanding the plaintiff's advice that the roof ought to be replaced. It was he also who obtained the ladder and placed it in situ for the plaintiff to descend from the air conditioning unit platform down on to the roof level. It was also he who requested the plaintiff return the ladder after he had completed the inspection and measurement of the roof. [2.6] Mr Bagnara was therefore responsible for the plaintiff gaining access to the roof which was clearly dangerous for the following reasons:- (i) It was of a clip-lock construction with the channels approximately 15cm wide and the ribs 5cm in height . (ii) The only way to walk across the roof was to place one's foot with the heel on one rib and the front part of the foot on the next rib. (iii) There were no channels or walkways for safe traversing of the roof. (iv) At the end and the edge of the roof there was a low parapet which enclosed the roof guttering. (v) The low parapet provided no barrier to falling a substantial distance to either the roof of the building below (approximately 12 metres) or to ground level. (vi) The roof was constructed so that if one's foot slipped between the ribs, it was clearly foreseeable that one would overbalance and fall." 115 I accept the above summary of the factual situation. I also accept that the risk was not so obvious that it did not require a response because: the risk relating to the lack of fencing was significantly exacerbated (and the need for the fencing/guardrail increased) by the instability associated with walking on a roof of this kind; and the surface of the roof gave the appearance of being safe to traverse which it was not. 116 In the circumstances I find that the risks are not such and are not so obvious that the defendant did not require a response and there has been a breach of the duty of care by the defendant in that it did not:

(b) provide a safe platform or walkway (a plank) to render more stable the surface upon which the plaintiff was required to walk;

(c) provide the plaintiff with a safety harness; and

(d) when requiring the plaintiff to walk on and measure a roof, make available to the plaintiff an adequate hand-hold or foot-hold. 117 The defendant has breached its duty of care to the plaintiff to take reasonable steps to avoid foreseeable risk to the plaintiff. 118 Further I find, and it can not be seriously disputed, that the breach of such a duty was causative of the injuries in question.

Contributory Negligence 119 I have not taken into account, in the above determination of a breach of the duty of care, the inexperience of the plaintiff in working on roofs. This is because the defendant is entitled, in dealing with a tradesperson and/or experienced operator, to assume that the operator has the appropriate skills to act competently in all of the circumstances. However, in terms of assessing contributory negligence, it seems that the Court is entitled to take into account the absence of experience in working on a roof and the absence of experience in working with kliplok roofing so as to make the dangers associated with walking onto the roof a matter of which the plaintiff would have been previously unaware. 120 The act of slipping and getting his foot caught was an act by the plaintiff which did not, in my view, amount to negligence. It was, almost by definition, at worst, one of mere inadvertence, inattention and misjudgement and not negligence: Bankstown Foundry v Braistina (1986) 160 CLR 301. It was probably not even inadvertence. It may be a "normal" result of pressure on the ridges when one bends the foot as is necessary in order to crouch. 121 To determine whether and to what extent, contributory negligence should diminish the damages that would flow, it is necessary to apply the principles associated with the determination of whether there has been a departure by the plaintiff from the standards of care one should expect of a reasonable person and the impact that such a departure had on the damage that was suffered. The High Court in Podrebersek v AI&S (1985) 59 ALJR 492 said: "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, i.e. of the degree of departure from the standard of care of the reasonable man ( Pennington v. Norris (1956) 96 CLR 10, at p 16) and of the relative importance of the acts of the parties in causing the damage: Stapley v. Gypsum Mines Ltd. (1953) AC 663, at p 682; Smith v. McIntyre (1958) Tas.SR 36, at pp 42-49 and Broadhurst v. Millman (1976) VR 208, at p 219 and cases there cited. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case; for example, the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage will be of little, if any, importance." 122 There are a number of factors which inform the exercise of balancing the culpability of plaintiff and defendant. The defendant was aware, at the time that it requested the plaintiff to attend, of precisely what would be required of the defendant. It was relatively easy and inexpensive for it to have provided a safety harness for the plaintiff's protection. There is certainly no evidence that, either because its main activity was not normally associated with the building industry or because of expense, it was inappropriate or unreasonable for the defendant to have such a harness available for use by the plaintiff. There is evidence that a safety harness is inexpensive and readily available. It was the defendant that directed the plaintiff onto the roof. 123 On the other hand, although the plaintiff was aware at the time the request was made that he was to "look at the roof", he was not aware that he was expected to gain access to the roof and walk on it. Further, at the time that the request was made, the plaintiff was away from home (he attended the premises at Turramurra on the way from another building to home) and it would have been unreasonable to expect that the plaintiff would have returned to the Central Coast from Turramurra in order to obtain a safety harness. It is with that in mind that one must then determine the relative culpability of plaintiff and defendant. 124 It is obvious from the foregoing that, in relation to common law negligence claims, I find that the plaintiff did depart from the standard of care of a reasonable person. However my task is to determine a proportion between plaintiff and defendant which is just and equitable. 125 In the circumstances of this case it is my evaluation that the defendant was significantly more responsible for the accident and I determine contributory negligence (to the extent that common law is the basis of the award of damages) at 20 percent.

Damages 126 As one would expect, the plaintiff, having fallen 9 metres, suffered severe injuries. There are, somewhat surprisingly, some fortuitous elements. The plaintiff did not land on concrete, nor the ground. He fell some 9 metres and landed on sheet metal roofing which, to some extent, ameliorated the adverse effects of the fall. Further, the plaintiff, who is left-handed, fell on his right side which, in the circumstances, is relatively better than if he were right-handed or if he had fallen on his left side. Nevertheless, the injuries are significant and the treatment has been significant. 127 Dr Scougall recited his injuries on admission to hospital as:- "1. A closed head injury with loss of consciousness, as mentioned, with an obvious bruise over his right eye. 2. Fractures of his right elbow, including a fracture of the olecranon process of the ulna and of the capitellum of the distal end of the humerus, those fractures involving the articular surface of that joint. 3. A markedly displaced fracture of the right wrist joint with median nerve damage, there was a displace comminuted fracture of the distal end of the radius involving the articular surface of the wrist joint and a fracture of the distal section of the ulna. 4. An injury to his nose, for which he was waiting for further surgery when seen. 5. An injury to his chest. 6. An abrasion on the front of his left shin and abrasions elsewhere. 7. He has been conscious of a grating sensation over his right shoulder blade on movements of his right arm." 128 The plaintiff was described during the course of proceedings as "resilient". The outlook disclosed by him, to which others attested, confirmed that description. He displayed a remarkable capacity for understatement, both in terms of the level of assistance that he requires and the level of assistance he will require. This is, it seems, a result both of his extremely positive attitude and confidence in his future capacity. As earlier noted, he is a person who understated his disabilities; he perseveres in activities that others who are less resilient would not and, indeed, some activities that others who have no disability could not perform. Nevertheless the fall has been, at least to some degree, debilitating. Certainly it has hindered his capacity to perform as he did before the accident. 129 It should be pointed out, at this point, that the plaintiff claims general damages, out-of-pocket expenses, economic loss and loss of earning capacity and domestic assistance, both past and future. The claim is not one covered by the Civil Liability Act 2002 (NSW) and is assessed under common law principles. 130 As earlier recited from the report of Dr Scougall there are three major categories of injury which give rise to the ongoing disabilities of which complaint is made. Those categories are:

(a) head injury, including brain damage arising from the trauma;

(b) injuries to his right elbow, right wrist joint and right forearm;

The categories outlined above are continuing injuries. There were other less permanent injuries which do not give rise to ongoing disabilities. 131 The defendant has helpfully summarised by way of introduction and summary of the evidence the damage suffered and the treatments undergone. It is no criticism to state that they advocate a view. Nevertheless they are useful to understand the nature of the injury and ongoing disability that is accepted by the defendant. Those submissions most relevantly state: "[2] According to the amended particulars, the plaintiff's main injuries resulting from the incident fall into five categories, namely: (i) Injury to the right wrist, forearm and elbow. (ii) Damage to the right median nerve. (iii) Deep laceration to the right leg. (iv) Head injury including traumatic brain damage. (v) Nasal deviation.

[3] The plaintiff's ongoing disabilities correlate with these injuries. He has had surgery in order to reduce the right elbow fracture. He has also undergone a carpal tunnel release. Operative treatment has also included a split skin graft. There has been a need for physiotherapy and rehabilitation. The plaintiff remains with a number of ongoing problems particularly related to the right arm. [4] The plaintiff also claims short-term memory loss and traumatic brain damage as a result of the heard injury. He allegedly suffers significant anxiety and depression. There has also been a severe interference with his pre-accident lifestyle, including interference with the marital relationship, interference with his ability to socialise with his children, and interference with his pre-accident occupational, social and recreational activities. The nasal deviation is said to cause breathing problems. His particulars include a claim for cognitive deficits such as forgetfulness, irritability and alcohol abuse. The case is somewhat complicated by the discovery, and subsequent removal, of a meningioma. Other relevant factors include the relationship, if any, of his neck symptoms to the subject accident. EVIDENCE IN THE PLAINTIFF'S CASE [5] The plaintiff does not remember much after he went over the roof. Indeed, it is because he does not remember the accident that he is not afraid of heights. He has some recall of some of the events in the hospital, and how he was feeling there. [6] When his wife saw the plaintiff the next day, she described his face as swollen. The swelling was mainly over his right eye, including the forehead, and over and below the eye across the nose. [7] After discharge from hospital following the accident the plaintiff had pain in the right arm on certain movements. He had no strength in the arm and needed to do a lot of physiotherapy to try and get the strength and movement back. The plaster on his arm was removed after a couple of months. He wore a brace for a longer period, and it was changed to a different one later. [8] He also claims that he had scapular pain, and it was not until later that he started getting niggling and neck pain. The neck pain was in the centre of the neck. The scapular pain 'nags all the time' and is there in different situation. [9] The first time the plaintiff told anyone about his neck problems was when he saw the chiropractor in Burns Bay Road, Lane Cove. That chiropractor was David Harris. He first saw the plaintiff on 6 March 2002. He has also been referred to Dr John Graham, Neurosurgeon, and he saw him for the first time on 22 November 2004. [10] The plaintiff alleges that he suffered an injury to the head. He had a lump over the right eye that went away over a period of weeks. He also claims an injury to the nose, which he first noticed as a breathing problem. [11] He used Panadeine Forte for about six months. After that he used Voltaren and then Glucosamine. He still uses Feldene cream every couple of weeks or so, and continues to take Glucosamine. [12] The hardware in the arm was removed on 5 May 2000. By then the plaintiff thinks he got strength back in his arm, and the arm got to a point where he would get pain if he did certain movements. Otherwise, he describes the pain as a niggling pain, and it depended on certain movements. [13] The plaintiff claims that by the time the hardware was removed he was definitely more aware of scapula and neck pain. Both were activity-sensitive. He also claims that he was having trouble with his breathing. However, he does not remember actually injuring his nose in the fall. He first sought treatment about his nose when he saw Dr Martin Forer, ENT. This was in 2002. [14] He underwent a septoplasty at Royal North Shore Hospital by Dr Forer on 5 September 2002. However, this did not rectify the difficulties he was having with his breathing. It should be noted there is no report from Dr Forer relied upon by the plaintiff and the usual inference should be drawn given the law of an explanation for its absence. [15] He was later referred to Dr Mendelsohn, who performed a rhinoplasty on 16 August 2005. That procedure was successful in treating his breathing problems. [16] The plaintiff underwent a craniotomy for removal of the meningioma on 14 February 2003. [17] Clearly, the plaintiff is left with restrictions of movement at the elbow and in the arm, especially the wrist. These restrictions, etc are to his non-dominant arm. He demonstrated those restrictions in court. He also has some neurological problems affecting the right hand/wrist for which he has returned to Dr Tonkin for advice and treatment. It should be noted there is no report from Dr Tonkin relied upon by the plaintiff and the usual inference should be drawn given the lack of an explanation for its absence. [18] The pain in the elbow and wrist is present everyday. The pain is worse during sleep and the arm locks, so he needs to straighten it and give it a really good rub. Sometimes, the pain is just a general all-over ache to a very sharp pain, depending on what the plaintiff is doing with the arm. He also has a very sharp pain in the area where the screws were inserted. [19] The plaintiff has noticed more neck pain in the last 12 months, mainly during his sleep. It gets very stiff, and rigid and sore, and is localised in the centre of the neck. Looking up with the neck in a flexed position hurts the most. In the last 6 to 12 months it has probably gotten slightly worse, it is more achy. The pain in the neck is there almost everyday. [20] He is due to have an arthroscopy as recommended by Dr Hughes and is on the waiting list at Royal North Shore Hospital. Dr Hughes has also advised the plaintiff that he will require an arthroplasty, but that this will not be done until he reaches at least 55 years of age. [21] The plaintiff believes the condition in his right arm has deteriorated over the past year or two. However, he intends to keep going with his work as much as possible because that is all he knows. [22] It has never been suggested to the plaintiff that he have any psychiatric treatment. However, he has sought advice from the pain clinic. The last visit there appears to have been in January 2002. THE MEDICAL EVIDENCE [23] The plaintiff was taken to Royal North Shore Hospital after his fall. The triage form notes that on examination the plaintiff was awake and alert . He had a periorbital haematoma over the right eye, and a deformity of the right elbow. The emergency department medical trauma record includes abrasions under the right scapula and right chest area, as well as a small superficial abrasion over the upper left shin area. There is no reference to any injury to the nose . Indeed, the face is otherwise noted as normal . Bystanders were said to be present within 30 second and apparently reported no loss of consciousness. There is also a note of alcohol consumption at 20 grams per day (this, presumably, relating to his then, that is pre-injury, consumption). [24] During his stay at Royal North Shore Hospital, the plaintiff appears to have undergone only one x/ray to the head region, that being a skull x/ray. No fractures were observed. There does not appear to have been anything untoward to alert the medical staff about a potential problem with the nose, or the plaintiff's breathing. [25] The ambulance report does not mention anything about an injury to the nose . There is a reference to the area above the right eye . The plaintiff's Glasgow Coma Score was measured on two occasions and found to be 15 ( normal ) on both occasions. [26] The plaintiff remained in Royal North Shore Hospital until 14 May 1999. From the clinical records, there does not appear to have been any complaint of breathing problems in that time. Nor do the hospital notes record anything about an injury to the nose . There also appears to be an absence of complaints of a psychological nature, particularly with respect to any memory problems. There is a reference to 'extreme agitation/nervous' by the clinical records do not record any attendances by a psychiatric registrar or psychologist that may suggest hospital staff had some concern about the plaintiff's psychological lability. [27] The plaintiff came under the care of Dr Sidhu at the Kariong Medical Centre after discharge from hospital. He first saw that doctor on 2 July 1999. At that time the plaintiff informed Dr Sidhu that his injuries were a fracture of the right wrist/forearm and a fracture of the right elbow. Dr Sidhu's medico-legal report to the plaintiff's then solicitors dated 4 April 2001 makes no mention of any psychological/psychiatric problems, nor does Dr Sidhu mention anything about nasal/breathing difficulties. The plaintiff's complaints related solely to the right arm . Dr Sidhu expressed the following opinion: ' His prognosis is poor. He has a permanent disability in his right wrist and elbow. Presently he has restricted wrist movement. He has a permanent scar over the flexor aspect of his wrist from the surgery and skin graft which have heeled well. He is currently working part-time with the use of his left hand only. As he was a full-time painting contractor, in my opinion he has suffered a permanent loss of earning capacity due to the restricted use of his right hand .' [28] The plaintiff returned to Royal North Shore Hospital on 5 May 2000 to have the hardware removed about the right elbow and wrist. This was undertaken as day surgery only. It is perhaps not unusual that no detailed history was taken about other matters that may have been concerning the plaintiff. However, to the extent there is no mention of any breathing or nasal problems at the time, or any psychological problems, this attendance is relevant. Indeed, the plaintiff completed a patient health questionnaire and answered ' No ' to the question concerning any breathing problems. [29] The plaintiff was referred to Dr Kerry Goulston, Consulting Physician and Gastroenterologist, by his LMO Dr Sidhu. He was examined in 10 October 2000 with a six month history of oesophageal reflux with significant heartburn. There was no abdominal pain. The plaintiff gave a history to Dr Goulston of the fall and severely crushing and injuring his right wrist and right elbow. There were no other complaints relating to nasal/breathing difficulties, or problems of a psychological nature. The cardio- respiratory system was said to be normal. [30] Dr Goulston arranged and endoscopy and recommended regular exercise such as swimming or walking for fitness, and that the plaintiff should go on a healthier diet. The plaintiff expressed some fear of further injuring his right wrist and right elbow. Dr Goulston also noted that the plaintiff ' was a successful contract painter and was in a managerial position with a few employees '. [31] When the plaintiff was admitted to Royal North Shore Hospital on 1 December 2000 for a gastroscopy, he again completed a patient health questionnaire and answered ' No ' to the same question concerning breathing problems. [32] There is a further report from Dr Goulston addressed to Dr Sidhu dated 8 December 2000. He confirms that endoscopically the plaintiff does have oesophageal reflux. Medication was prescribed. Dr Goulston noted the plaintiff's concern about his right arm and suggested he should make his own decision about future occupation. He notes the plaintiff as already moving into painting administration rather than actual painting. [33] A final report dated 6 March 2001 to Dr Sidhu by Dr Goulston notes that symptomatically, the plaintiff was much better. The medication was relieving his reflux symptoms completely. Once again Dr Goulston notes the plaintiff was doing more administrative work, but he still found that he was painting occasionally but tried to use his left hand only. The plaintiff wanted to see someone 'about his nose' and Dr Goulston recommenced Dr Martin Forer. The plaintiff was discharged from Dr Goulston's care. [34] The plaintiff's breathing/nasal problems appear to gain some importance in 2001. There is nothing tendered from the Kariong Medical Centre, Dr Sidhu, or any other doctor or medical provider that suggests any contemporaneous reference relating to his nose or related issues until 6 March 2001 when the plaintiff mentioned about his nose to Dr Goulston. At that time, the doctor recommended to the plaintiff that he be reviewed by Dr Martin Forer, ENT. [35] On 17 August 2001 the plaintiff was examined by Dr James Scougall, Orthopaedic Surgeon, for medico-legal purposes. Dr Scougall reported to the plaintiff's then solicitors on 20 August 2001. In addition to the right arm injuries, the plaintiff gave a history to Dr Scougall that as a result of the fall he also suffered a closed head injury with loss of consciousness and an obvious bruise over his right eye, an injury to his nose for which he was awaiting further surgery, and that he had been conscious of a grating sensation over his right shoulder blade on movements of his right arm. [36] His ongoing symptoms included grating of the right shoulder blade (coincidentally similar to his previous problems) and significant symptoms relating to the right arm. He told Dr Scougall he was not aware of any symptoms related to the heard injury although his friends apparently said that he was now more forgetful than he had been. He was not suffering from headaches. [37] In relation to the previous motor vehicle accident, the plaintiff told Dr Scougall that the pain he had developed over his right shoulder blade completely settled after two cortisone injections and prior to the subject fall. However, he said that since the fall the symptoms had recurred and he was conscious of grating in that area ' without any associated pain nor any functional disability '. [38] Dr Scougall recorded a social history as follows: ' He helps his wife with the house maintenance activities, protecting his right arm. He now uses his left hand for most of those activities. He has difficulties with all those tasks requiring him to use both hands to do lifting and in physically demanding tasks. He is conscious of physical weakness in his right arm and a degree of awkwardness in the performance of those tasks. He goes shopping with his wife, protecting his right arm. His wife does the cooking. He has returned to doing the gardening with his wife, again avoiding physically demanding tasks because of the symptoms in his right arm. He is not particularly involved in any sport. He is able to be involved in recreational sporting activities with his family, protecting his right arm. He is able to drive his car, again protecting his right arm, doing most of the steering with his left .' [39] The plaintiff told Dr Scougall that following the fall he had been off work for three to four months. Since his return to work he was apparently unable to return to his full pre-injury work and hours. He was then working five days a week and had employed one employee to help him on a permanent basis. The plaintiff stated that first thing in the morning he organises and supervises the work to be done, and then physically helps with the painting. He told Dr Scougall he would be unable to manage his full pre-injury duties. There would be restriction in his ability to do heavy lifting. He claimed to have difficulty holding the handle of a roller and doing work in that capacity because of pain and restriction of range of movement in his right arm, particularly the elbow. He was able to use a roller on vertical walls in front of him, but not where he has to try to use the roller above head level. There was also difficulty carrying tins of paint, ladders and planks, and the plaintiff stated he had difficulty setting up scaffolding. His employee now does those physically demanding tasks. Attempting to do them aggravates the plaintiff's right arm too much and he claimed lack of physical strength to perform them properly. [40] He claimed to have lost some of his regular customers during his time off work. This, however, is not supported by the evidence. He told the doctor that he can perform movements requiring fine dexterity with his right hand with no particular problems and is able to do up buttons, belts and zippers. He does not particularly tend to drop things he is holding in his right hand. [41] On examination, Dr Scougall noted some restriction of active ranges of movement in the plaintiff's right shoulder, particularly on forward flexion. He also had some restriction of full range of movement in his right elbow. There was also significant restriction of active ranges of movement in the right wrist. Power of grip in the right hand was notably les than in the left. Dr Scougall also noted a well-heeled 13 cm posterior surgical scar on the back of the right elbow and upper forearm, and a well-heeled 9 cm scar on the front of the right distal forearm and palm. Part of the scar on the forearm was about 1 cm wide and that area was noted to be pigmented. There was also a 1 cm scar on the radial side of the right hand where the K-wires had been placed. On the positive side, there was a full range of flexion and extension in the fingers of the right hand and no sensory loss in the right hand. [42] Dr Scougall opined that the plaintiff had suffered chronic soft tissue lesions in the right shoulder, elbow and wrist. He also referred to a slight deviation of the nose for which the plaintiff was awaiting further treatment, and some well-heeled superficial scars on the front of the left shin. The fractures in the elbow and wrist were said to involve the articular surfaces. Accordingly, the plaintiff would develop increasing osteoarthritic changes in both the right elbow and wrist in the future. Those changes were said to be a cause for permanency of his symptoms at their present level. Over the years, however, the plaintiff would develop a further restriction of range of movement in the right elbow with loss of probably a further 15°. He would also continue to have a significant restriction of ranges of movement in his right wrist with a further loss of range of that joint in the long term. Dr Scougall thought it unlikely that symptoms in the elbow due to osteoarthritic changes would become troublesome enough to warrant a total elbow arthroplasty. As regards the right wrist however, Dr Scougall thought the plaintiff may one day require further surgery for osteoarthritic changes and he provided an estimate of costs for a right arthrodesis. Those costs came to about $5,000 and Dr Scougall suggested a period off work of some 14 weeks. [43] He assessed a 25% permanent loss of efficient use of the right non-dominant arm at or above the elbow, deemed to include below the elbow, together with a 1% severe bodily disfigurement due to the scar on his left shin. [44] On 2 January 2002, the plaintiff was assessed by the University of Sydney Pain Management and Research Centre at Royal North Shore Hospital. This was a neuropsychological assessment undertaken by Andrew Rock, intern neuropsychologist, and Dr Robin Murray, clinical neuropsychologist. The purpose of the assessment was to determine the plaintiff's application to participate in the ADAPT pain management program. He was also assessed to determine whether neuropsychological findings were consistent with his head injury. [45] It would seem from the history given by the plaintiff that by now he was seeking to attribute all of his problems to the subject fall. Although Rock/Murray note that 'medical records' indicated the plaintiff had sustained a traumatic brain injury, he did not identify the source of those 'records'. The plaintiff also reported to them that he lost consciousness for an unknown period after the fall. They do note, however, the plaintiff's GCS score was recorded as 15/15 both at the scene and on admission to the hospital. The injuries that the plaintiff sustained in the fall were said to include bruising over his right eye, fractures of the right elbow and wrist, injuries to his nose and chest, and abrasions. He also complained of experiencing a 'grating' right shoulder blade when he moved his right arm. The plaintiff reported his principal concerns as pain, greater forgetfulness and irritability. The plaintiff told Rock/Murray that whereas he rarely consumed alcohol before the fall, he was then frequently drinking until intoxicated to 'deal with stress'. The plaintiff estimated he consumed approximately four drinks per night. [46] The plaintiff also complained to Rock/Murray about a range of symptoms said to be consistent with post-traumatic stress such as flashbacks and nightmares, and an intensified emotional state when he passes the place where the accident happened. It should be noted the plaintiff said nothing of the kind in evidence. Indeed, the plaintiff said he does not remember much after he went over the roof, and that it is because he does not remember the accident that he is not afraid of heights. [47] Rock/Murray applied a number of tests when assessing the plaintiff. On a self-report measure of psychological functioning, the plaintiff reported experiencing normal levels of anxiety and stress, but moderately elevated levels of depression. [48] Rock/Murray assumed a traumatic brain injury based on the apparent findings of the hospital. They state, consistent with the plaintiff's estimated pre-morbid level of intellectual functioning, his general intellectual abilities lie within the average range. Psychomotor speed of 40 in his non-dominant right had and his speed of information processing fluctuate, but are said to be generally mildly impaired. Rock/Murray concede that impairment of right hand speed is probably explained by the orthopaedic injuries suffered by the plaintiff in the fall. They go on to state that his initial acquisition of verbal information is well below average, but improves to normal limits with repeated exposure. Though his delayed verbal recall was average overall, recall of meaningful verbal information was impaired. With cueing, the plaintiff's recall was in the high average range. His non-verbal reasoning and ability to use feedback to develop and test problem-solving hypotheses were well above average. All other cognitive domains were within normal limits. [49] With respect to alcohol consumption, Rock/Murray felt that this was not currently excessive but, for obvious reasons, advised exercise as a stress release strategy rather than consumption of alcohol to help deal with stress. Rock/Murray also add that exercise would probably help reduce the increased irritability and low mood that the plaintiff reported. [50] The plaintiff's level of depression was said to moderate. Rock/Murray also appear to support his stated difficulty in managing anxiety, and felt that a referral to a clinical psychologist is recommended. There has been none. The plaintiff's reported mild deficits relating to speed of information processing and the acquisition and delayed recall of meaningful verbal information were said to be consistent with the head injury that he sustained in the fall. These were said to be expected to lead to difficulties at work and in other settings. [51] On 6 March 2002 the plaintiff consulted David Harris, Chiropractor, in relation to spinal discomfort. He complained of pain in both shoulder blades (scapula) and the mid-back region (thoracic spine). He claimed to have been in pain for three years. Once again he gave a history of being knocked unconscious in the fall. As a result of the injury and subsequent surgery, the plaintiff complained he was unable to fully extend his right forearm. He also gave Harris a history of striking the right had side of his head on impact. His complaints included joint pain and stiffness, forgetfulness, confusion, depression at times, loss of sleep, tiredness and fatigue, heartburn, sinus and visual problems. [52] Adjustments of the spine were commenced on 7 March 2002. Treatment was to take place over the next 12 months, but there is no further medico-legal report from Harris. The plaintiff was also to undergo further radiographic examination to monitor his progress. [53] On 14 May 2002, the plaintiff was seen by Dr Dennis Crimmins, Consultant Neurologist, on referral from Dr Sidhu. Dr Crimmins took a history of a closed head injury in the subject fall with the plaintiff noticing, inter alia, subtle difficulties with memory and concentration, and what would appear to be a post traumatic stress disorder associated with the psychological aspects of the fall. He also described episodes whereby he looses contact with his surroundings. These occurred intermittently, only lasted for a few minutes and then resolved. The plaintiff described these as 'blank spells'. Dr Cummins referred to a recent EEG which showed some sharp wave activity that may suggest these episodes were epileptic in nature. [54] Once again the plaintiff claimed he was not a drinker prior to the accident (not supported by the evidence) and referred to his increased consumption of alcohol. In the presence of these absence attacks, Dr Crimmins thought it worthwhile to organise an MRI scan of the brain.

[55] Dr Crimmins reported again to Dr Sidhu on 25 July 2002 after reviewing the plaintiff a couple of days earlier. He noted a normal EEG, but changes consistent with a meningioma on the MRI scan. The findings suggested the possibility of the lesion causing the ongoing seizure activity, which in turn would explain the plaintiff's 'turns'.

[56] Dr Crimmins referred the plaintiff to Dr Raymond Cook, Neurosurgeon, in relation to his left frontal tumour. A craniotomy was performed on 14 February 2003 by Dr Cook for removal of the meningioma. [57] Because of continuing right forearm problems, the plaintiff was referred to Dr Les Barnsley, Consultant Rheumatologist, by his general practitioner. He first examined the plaintiff on 17 August 2002. A consistent history of the fall was given to Dr Barnsley. The plaintiff said it took about a year for his right arm to ' get back to anything like normal'. However, he had been left with diminished range of movement of the right wrist, particularly extension, and also loss of flexion at the elbow. The elbow, wrist and forearm would ache with use but there was no visible swelling. The plaintiff complained of some cramping in the muscles. He told Dr Barnsley he had returned to work but in a limited capacity, with occasional manual work and primarily an administrative role in his painting business.

[58] On examination, the plaintiff had good grip with both hands, and light touch was normal. There was a fixed flexion deformity of about 20 degrees at the right elbow, but normal supination and pronation. There was a 10 degree deficit of both ulnar and radial deviation, but extension was limited to only 30 degrees and flexion to about 50 degrees. Dr Barnsley noted significant forearm wasting. He felt the plaintiff would most likely turn out to have significant post-traumatic osteoarthritis of both his wrist and elbow. Further x-rays were organised and the plaintiff was to be reviewed by Dr Barnsley after that.

[59] The plaintiff was reviewed by Dr Barnsley on 31 August 2002. Dr Barnsley noted the recent x-rays showed significant osteoarthritis of the radiocarpal joint and, although not reported, he believed there was significant osteoarthritis in the humero-ulnar joint at the elbow as well.

[60] Dr Barnsley opined that the osteoarthritis would more likely than not progress and he suspected that the plaintiff would have increasing problems with pain in the hand in the future. Glucosamine may go some way to ameliorate this but, otherwise, Dr Barnsley suggested that the plaintiff try and avoid repetitive and forceful use of the right arm such as hammering, carrying weights, digging and so on. This was not to say that he should not use the arm at all, as this would be counter productive. The plaintiff was to be reviewed once the tumour was excised. [61] There is a medico-legal report from Dr Barnsley dated 7 October 2002. The main body of the report does not take the issue any further than his two reporting letters to the general practitioner. Dr Barnsley does, however, provide some further opinion about prognosis and impairment of earning capacity in the following terms: 'The natural history of osteoarthritis is for relentless progression. I think that Mr Takacs will have worsening and ongoing pain, stiffness and loss of function in his right wrist and elbow as a result of the arthritic' change which is already apparent after only three years. I believe that Mr Takacs has suffered a permanent loss of earning capacity ... he has lost significant use of his right hand and wrist and this will become more pronounced over time.' [62] In a supplementary report, Dr Barnsley assesses the permanent impairment at 20% loss of effective use of the right arm below the elbow. [63] The plaintiff was reviewed in the Neurosurgical Outpatient Clinic of the Royal North Shore Hospital by Dr Andrew Davidson on behalf of Dr Cooke on 9 April 2003 following elective craniotomy and removal of the left frontal meningioma. He was advised he should return to all normal duties and normal physical activity, with the only restriction being that he did not play contact sport. He was to be reviewed in twelve months with a follow-up MRI scan. [64] It is submitted the referral to contact sport would include the football coaching given the plaintiff was concerned about contact with the growing players. [65] Dr Barnsley next reviewed the plaintiff on 10 May 2003. This was following removal of the left frontal meningioma. Dr Barnsley noted he had made an 'excellent recovery'. The plaintiff had then been back at work for about a month but during this time he noticed increasingly severe pain in his elbow, and that some movements, even just trivial ones, could aggravate his pain. On examination there was a fixed flexion deformity of 10° in the right elbow, full flexion but a 10° loss of supination, no effusion and no focal tenderness. In the wrist, there was only about 5° of extension and 50% loss of radial deviation. Flexion was relatively normal. Because of suspected progressive osteoarthritis, Dr Barnsley organised a CT scan of the elbow and recommended that he continue with Glucosamine, and added Diclofenac (Voltaren) to his medication. [66] On reviewing the CT scan, Dr Barnsley felt it only revealed osteoarthritic change with no evidence of loose bodies. He suggested to the plaintiff that he might consider job re-training to avoid unduly loading the elbow joint, and to avoid hastening any deterioration. No follow-up appointment appears to have been made after this consultation. [67] The plaintiff is next reviewed by Dr Barnsley on 4 January 2005, but this appears to be essentially a medico-legal examination for the purposes of preparing his report to the plaintiff's solicitors dated 7 January 2005. When reviewed on this occasion, the plaintiff reported that his elbow was getting worse, with rapid deterioration a few months previously. He told Dr Barnsley that his arm can now give way and hurt with radiation of pain along the proximal ulnar. However, he had not noticed any obvious swelling of the elbow. It was currently hurting a lot more than the wrist. The pain was said to be sharp, tended to settle over a few minutes, and was not associated with any locking or jamming. The plaintiff did notice some clicking and the arm could stiffen. Numbness of tingling in the hand since the original repair of his median nerve was denied. [68] It should be noted the plaintiff did not give any evidence about the arm giving way. [69] The plaintiff told Dr Barnsley he was still working as a painter 6 hours a day. Most of his work was done with the left dominant hand, but he needed the right arm both to support paint pots and also to help with the roller. He was apparently physically painting for about 4 hours a day. [70] On this occasion the plaintiff complained for the first time to Dr Barnsley about problems with neck pain. He gave a history of this developing within twelve months of the accident but suggested the analgesics he was taking for his arm in that first twelve month period could have masked any neck pain. In addition to neck pain, the plaintiff also complained of some peri-scapular pain at the lower pole of the right scapular. He said he initially had this following the MVA in 1994 but was treated with local injection and exercise 'with excellent resolution'. This is consistent with the history given to Dr Scougall, but inconsistent with the history apparently given to the Neuropsychologists, Rock/Murray. [71] The plaintiff also told Dr Barnsley that he initially sought treatment for the neck and shoulder pain from a chiropractor, but when the meningioma was diagnosed he stopped that treatment. As stated above, the plaintiff first saw David Harris, Chiropractor, on 6 March 2002, some three years after the subject accident. Therefore, there remains a substantial gap between the fall and apparent onset of these problems. [72] The plaintiff's complaints in relation to the neck were stiffness and soreness at the base of the neck with neck extension. It may be somewhat coincidental but, as a painter, one would have thought neck extension would be something that is part and parcel of a painter's job when either painting above shoulder level or doing any ceiling work. [73] On clinical examination, Dr Barnsley noted a 5° loss of supination (down from 10° on the last occasion), a 25° fixed flexion deformity of the elbow (up from 10°) and 135° of flexion (compared to full flexion on the last occasion). There was also some soft tissue swelling palpable over the joint margin. Extension of the wrist had improved to 35° (compared to about 5° on the last occasion) but flexion was down from normal to only 20°. Ulnar and radial deviation also appeared to be worse. In the shoulder, there was a full range of movement but Dr Barnsley did note some scapulo-thoracic crepitus with some mild asymmetry of scapular movement with simultaneous arm abduction. [74] Dr Barnsley concluded that the plaintiff had evidence of progressively worsening pain in the right elbow, with the development of some soft tissue swelling indicating active, and therefore progressive, osteoarthritis. He was pleased to note, however, that the plaintiff did not have any overt forearm muscle wasting, indicating that he had been working to try and mitigate his problems. His opinion about the neck problem is as follows: ' His neck pain occurs principally with neck extension. I am unsure of its exact relationship to the injury that he sustained since clearly he has had a job that has required significant neck extension to paint roofs and also he has a preceding motor vehicle accident. However, the temporal sequence would suggest that it may be related to the most recent fall and I am sure that he would have sustained some degree of acceleration, deceleration injury to his neck with the fall. It also seems reasonable to suggest that his symptoms from the neck were masked by his need for significant analgesia in the first year whilst his right arm was being treated. At this stage I believe that the recommendation for regular exercise is the correct one and I would not add anything to this. ' [75] It is submitted that the basis of Dr Barnsley's opinion about the temporal relationship and nature of the injury suffered have not been proven, and, therefore, the Court should reject the plaintiff's claim in respect of the neck. [76] In terms of prognosis, Dr Barnsley opined as follows: ' The natural history of osteoarthritis is for relentless progression. I think that Mr Takacs will have worsening and ongoing pain, stiffness and loss of function in his right wrist and elbow as a result of the arthritic change which is already apparent after only three years. His scapulo-thoracic dysfunction should improve with physiotherapy. His neck pain will vary but would be unlikely to significantly worsen or improve for the foreseeable future. It may by helped by avoiding painting ceilings. ' [77] Dr Barnsley estimated a 25% loss of function of the right arm at or above the elbow, constituting a whole person impairment of 20%. In addition, he thought the plaintiff had a 10% loss of the effective use of the neck, constituting a further 4% whole person impairment. He opined that the plaintiff had suffered a permanent loss of earning capacity as he has lost significant use of his right hand and wrist, such disability to progress over time. [78] On 22 November 2004, the plaintiff was examined by Dr John Graham, Neurologist, on referral from Dr Sidhu. At that stage, the plaintiff had no numbness or tingling down the right arm, and no actual weakness. He was no longer taking any tablets for the pain and was occasionally taking alcohol. [79] On examination by Dr Graham, neck movements were satisfactory. Dr Graham felt there were no hard signs of nerve root or cord involvement, but it was likely the plaintiff had some degenerative changes in the cervical region, and perhaps the upper thoracic spine as well. He thought this could also explain the right scapula pain. [80] Dr Graham reviewed the plaintiff on 16 December 2004 following the MRI scan of the cervical spine. The MRI showed no nerve root or cord lesion, but mild central disc osteophytes were seen at C4/5 and C6/7. Dr Graham thought they may well respond to conservative management with isometric neck exercises and the plaintiff was advised to do them on a daily basis. He opined that generally the symptoms settled down over a few months and the plaintiff may be a good deal better in about 3 months time. Should he not improve or become worse, he will need to find an alternative trade to painting. There is no further report from Dr Graham. [81] It appears the plaintiff's neck and scapula pain have not improved. If anything, they appear to have worsened. However, the cause of the scapula pain remains uncertain, and, it is submitted, on the balance of probabilities neither is related to the subject accident. [82] Throughout this period the plaintiff was also reviewed by Dr Jeffrey Hughes, Orthopaedic Shoulder & Elbow Surgeon. He most recently saw the plaintiff on 5 December 2005 following a CT scan of the elbow. The CT scan apparently showed significant degenerative changes as well as cartliaginius loose body. In addition there was quite reduced joint space between the radiocapitellar joint. Dr Hughes felt the plaintiff has a combination of post-traumatic arthrosis and loose body formation. He would derive some benefit from having the elbow arthroscoped and the loose bodies removed. It is likely that in the long term he will still need to modify his activities in relation to work and try and avoid any heavy lifting or use of impact tools. He considered it unnecessary to have the surgery done urgently but if he develops more acute locking and/or neurological symptoms then consideration may be given to bringing him forward. He has been placed on the waiting list RNSH. [83] In his medico-legal report dated 16 January 2006 Dr Hughes states that the repeat arthroscopy may provide relief of symptoms. An elbow arthroplasty would impose a number of significant conditions, but it should be noted that these do not appear to be much different to those under which the plaintiff currently works. Dr Hughes has been unable to explain why the plaintiff has scapula pain, and he has not been able to identify any specific abnormality. [84] The plaintiff has also seen Dr Christine Harris, Consultant Physician in Occupational Medicine, on several occasions for medico-legal purposes. On his first visit on 12 January 2004, Dr Harris noted no evidence of muscle spasm or asymmetry, and a full range of neck movement. Findings in respect of the arm and wrist were similar to other examiners. Dr Harris felt at the time that the plaintiff was already exhibiting symptoms consistent with arthritic changes in the wrist, and that this would progress with time. His restrictions in working capacity were noted, and these were said to increase with time. The plaintiff would eventually require an arthrodesis of the wrist. [85] In a further report dated 13 February 2004, Dr Harris opined that the plaintiff will ultimately need to cease work as a painter. She thought a 'generous estimate' of when this would occur is three years. Or even less! Computer training was considered a necessity. [86] It is submitted Dr Harris' 'generous estimate' is simply untenable in the light of all the other evidence. [87] Dr Harris re-examined the plaintiff on 12 December 2005. He continued to complain of the following: ● Memory problems. ● Congestion of the nose. ● Painful right elbow and difficulty with lifting heavy objects. ● Painful right wrist. ● Spasmodic pain over the right scapular region with lifting. [88] The plaintiff told Dr Harris that he continues to work as a painting contractor, self employed, mostly approximately 6 hours per day with good and bad days. He employs one other painter. His only medication is Glucosamine and he uses a Feldene Gel. He had just commenced a course of physiotherapy that month because of ongoing neck and arm problems. He consumes one or two drinks of wine per day, but at times it is as much as a bottle. He tends to use alcohol as a sedative when he is unable to sleep. This appears to be inconsistent with the plaintiff's evidence. He complained of numbness/tingling in the right arm over the past 6 months. He said he is able to drive an automatic car and does this one-handed. He drives approximately 1 hour to and from work. [89] The plaintiff also complained that his neck is stiff and painful with symptoms being virtually constant, and he feels the symptoms have increased if anything with time. Neck pain is associated with discomfort/tightness over the right scapular region, and aggravated by turning his head to the right and extending his head backwards. He obtained some relief from massage. His sleep is restless. The right elbow was painful and stiff. The right wrist is painful at times but this is not as severe as the elbow. The right wrist symptoms were said to be intermittent. [90] On examination, there was once again no evidence of muscle spasm or asymmetry in the neck. There was no real tenderness of cervical spine but some 'tightness' over the paraspinal musculature. Neck movement to the right was decreased by half. There was tenderness over the upper boarder of the right trapezius. Reflexes in the upper limbs were present and symmetrical. There did not appear to be any neurological involvement of the upper limbs. The right shoulder did not show any muscle wasting. There was no tenderness and he had a full range of shoulder movement. [91] Dr Harris once again opined that the plaintiff certainly runs the risk of premature osteoarthritic changes in the right elbow and right wrist joints, with increasing loss of mobility. He also runs the real risk of arthrodesis or fusion of the right wrist in time. The pain and loss of mobility in the cervical spine is mostly postural in origin with underlying early degenerative changes shown on the MRl of 2.12.04. Prognosis was guarded. According to Dr Harris, he is managing to work using his left side, but is now having real problems with pain over the left scapular region, which she felt is due to postural factors as a result of protecting his right arm. It should be noted the plaintiff did not give any evidence consistent with this last statement by Dr Harris. [92] In a final report dated 30 January 2006, Dr Harris opined that the plaintiff's working life, in terms of 'working as a full-time painter carrying out all his previous activities' would be no longer that 5 or 10 years, but stated 'this is a very general assessment'." 132 There is one very minor issue on the question of injuries, which were otherwise relatively uncontroversial as between the parties, relating to the injury to the plaintiff's nose. The controversy arises from a description of the plaintiff's injuries given by the plaintiff in the witness box. There is no doubt from my observation, as recorded at page 30 of the transcript (and during discussion thereafter), that the plaintiff indicated that his nose has been injured. He indicated injuries to his temple, his right eye, his nose and across his cheekbone in relation to the external injuries on his face. The ambulance notes do not record an injury to the nose. In the scheme of injuries of concern to them, the nose injury would not have been significant: see Davis v Wagga [2004] NSWCA 34 at [35]; Kappadoukas v Fransepp [2006] NSWCA 366 at [56], [57]. I conclude that the nose was injured and the treatment of his nose is an expense which can be included in the treatment expenses associated with the injuries from this incident. 133 There is little doubt that the plaintiff suffered significant pain and continues to suffer significant pain. At one stage this led him to drink alcohol to an unacceptable degree in order to overcome the pain and allow him to sleep. This was not an alcohol dependence. He has, partly because of his resilience, treated that consequential issue and no longer self treats the pain by the use of alcohol. 134 As described by the plaintiff in submissions, the loss of the use of his upper limb to the extent that the plaintiff has, represents a most significant disability to a relatively young man. "It affects all of his life's activities, at work, socially and recreationally. He has been unable to return to his favourite recreation of golf and has been affected in his ability to carry out domestic activities at home." I do not consider the plaintiff has ongoing disabilities, other than of a minor kind associated with initial aural comprehension, resulting from permanent brain injury. 135 I have remarked that the plaintiff has been described as "resilient". It is a description which I accept. There are some examples that ought to be repeated for an understanding of how it has affected the plaintiff and how it affects the assessment of damage. 136 Prior to the injury, the plaintiff performed significant domestic functions around the house and was working as a painter in his own business (a partnership with his wife). He did all of the painting work for the business. On all occasions prior to the injury he did the work himself. Since the injury that has not been possible. Nevertheless, notwithstanding an incapacity with his right hand, he continues to work and he continues to paint. He is unable to do finer work because it necessitates both hands. He is unable to work from a ladder because he is unable to hold on. He is unable to use a large roller because it requires both hands. Nevertheless, the plaintiff works, almost fulltime. He does more than should be expected given the nature of his injuries and he supervises other painters whom he now employs. 137 Around the house, there is a similar story. He continues to mow the lawn. This he does by pushing the mower with his left hand and his hip. He continues to cook, using only his left hand. There are of course significant areas of domestic activity which he had previously performed and which he is now unable to perform or, if he does perform them (including the foregoing) he necessarily performs them at a slower rate. 138 I have already stated in the earlier part of this judgment that the plaintiff (and his wife) understated the injuries and their effect. There can be little doubt of that. The determination and confidence of the plaintiff led him to understate, in his own opinion, his need for future assistance. The need for assistance will become an increasing problem as the arthritic effects of the injury to his limbs become more pronounced in his older age. 139 His treating doctors are far less confident. I accept their prognosis. 140 Further, even in relation to past domestic assistance, the plaintiff and his wife have clearly understated the level of assistance given. Nevertheless, that is the evidence before the Court. And in some respects that is appropriate. Given that the plaintiff will receive past economic loss, the fact that he takes three or four times as long to do domestic chores is, at least in one sense, already compensated. Whether compensated or otherwise, the Court must deal with the evidence that is before it.

141 I accept the submission of the plaintiff that the partnership earnings are the appropriate measure for the purpose of calculating economic loss given that he was overwhelmingly the person who generated and earnt the income for the partnership. While his wife did administrative tasks, the plaintiff gleaned the business through his contacts and his reputation and he performed all of the painting work for which bills were rendered and from which the total earnings of the partnership were received: Husher v Husher (1999) 197 CLR 138. 142 I also accept that it will not be long before the amount of painting work now undertaken by the plaintiff will significantly diminish and ultimately disappear because of the disabilities associated with his injuries. 143 The plaintiff gave evidence of his view (not uncommon amongst persons in their 30s) that he would have, in the ordinary course, sought to retire or ease-up on work at an earlier age. Nevertheless I accept that it is appropriate to award damages for the diminution of earning capacity until the age of 65. I also, as the foregoing makes clear, award compensation for domestic assistance for all that is claimed (and underestimated) for the past and that which is claimed for the future and calculated on the basis of the opinion of the occupational therapist. That opinion is not the subject of challenge. 144 That estimate is that the present requirements of the plaintiff are approximately 5 hours per week increasing in 10 years time to a level of 7 hours per week and after a further 10 years increasing to 10 hours per week. I accept that estimate and that opinion but allow a discounted calculation in accordance with the plaintiff's figures. 145 The general damages range is within a small compass and given the nature of the injuries suffered and the matters to which I have already alluded I award the amount of $175,000 in general damages. 146 The expenses for past treatment has been agreed at $18,000 and I will allow that amount. The aspects of future treatment are not substantially in dispute and I allow the amount of $35,000 for future treatment. I make clear in relation to treatment that I have included treatment for damage to the nose which I accept was caused by the injury in question. There was at some stage an issue as to whether or not the nose damage was included (see transcript page 30 and page 70). I made it clear at [131], infra, that I accepted that the plaintiff had indicated by hand movements a big lump on his forehead, injury to his eye, the right side to his face, including the temple, nose and across the cheekbone. I accepted that description, and I include treatment for the damage to the nose in the cost of the treatment in question. 147 In relation to the loss of past earning capacity, allowance must be made for the time period during which the plaintiff would have otherwise not worked because of a meningioma which, on the evidence, was not related to the injury. The accountants qualified by the plaintiff assess the past loss for the period from 4 May 1999 until 31 December 2004 (290 weeks) and deduct from that a period of 9 months (from July 2002 until April 2003) for the period of illness on account of the meningioma. The calculation made by Furzer Crestani in that regard was an amount of $80,241. The 9 month period is calculated by taking the period as being from the date of the invoice for work last made in 2002 until the first invoice for work done by him after the operation on 14 February 2003. The calculation, as already mentioned, is $80,241. With that calculation Walter Turnbull, the accountants qualified by the defendant, agree. Indeed, on the basis that the assumptions made by Furzer Crestani prove to be correct (which largely they have) Walter Turnbull accepts the methodology and projected income calculations by Furzer Crestani. The past loss of earning capacity must also include a figure from 31 December 2004 until 5 March 2007, a period of 114 weeks based upon a net loss of $335.50 being a further amount of $38,247. This would bring the total amount for the past loss of earning capacity to $118,488. 148 The interest on the past loss of earning capacity is calculated at 5 percent for 7 years and 10 months on the $118,488 which brings in an amount of $46,407 for that interest. 149 As to future economic loss there are a number of matters with which I will briefly deal. I do not award an amount relating to the loss of future superannuation benefit. I do this because past income (and the datum point for the calculation of losses) was income as a self-employed person from which superannuation benefits would have been paid. To include the future loss of superannuation benefits as well as the loss of earning capacity would be to double count that factor and I do not allow it as part of the damages in these proceedings. 150 The difference between the plaintiff's calculation and claim and that of the defendant's is the assumption by the defendant that the plaintiff will continue working as a self-employed painter and earning income not dissimilar to that which was earnt in the later period after the accident or calculated on that basis. The prognosis from medical practitioners, however, is, unfortunately, not that optimistic. There is some difficulty with this estimation as the noted determination and resilience of the plaintiff may result in a capacity to defy the medical prognosis. However, some of that confidence will be dispelled by the reality of age and the cumulative effect of the injuries on his body. 151 I accept that his working life as a painter will cease from approximately 10 years after the accident and therefore accept that from on or about 1 July 2009 any loss of income will have to be assessed on the basis of wages earnt rather than income from his continuing business activities. However I take account of the resilience and determination by assuming the scenario based upon a higher net wage from that period than might otherwise have been appropriate. That results in an assumption that the net wage (i.e. after tax) would be $500.00 per week for the period commencing 1 July 2009 and those net wages (the equivalent of $622.74 gross per week, i.e. including tax) are deducted from what otherwise would be the continuing income earnt from the business in order to calculate the loss. 152 Both sets of accountants have assumed an income from the business between 1 July 2004 and 30 July 2009 based upon an adjusted net business income of $34,824. I allow 15 percent for the vicissitudes of life. The calculations make allowance for the reasonable estimate of efforts of the plaintiff's spouse as a deduction from the damages. The calculations assume that the plaintiff will retire at the age of 50. That early retirement age is a necessary assumption, which is proven on the evidence, based upon the disabilities which will worsen over the years. I calculate the future loss of earnings from 1 March 2007 and calculate the figure at $353,945. 153 The defendant submits that the plaintiff, in such a calculation, takes the benefit of the capacity to work as well as the additional capacity because two (perhaps the equivalent of one and a half) persons are painting and carrying out the work and that, therefore, a reduction in the amount needs to be made. The submission is not absolutely correct. On one view, the plaintiff had the capacity prior to the injury of employing a person and doing painting jobs more quickly and/or larger painting jobs. He had chosen not to organise himself in that way. There may be a number of reasons for that. First, he may have been unable to obtain the additional work. Secondly, he may not have been able, even with the greater capacity, to do the larger jobs of which the defendant speaks. Thirdly, the employment of an additional person on income producing activities does not necessarily result in greater profits; it only results in greater profits if there is a market for the additional activity and it is possible to take advantage of it. Fourthly, the plaintiff had chosen a lifestyle which did not include the stress of a role as an employer, which, as this case shows, involves managerial responsibilities, insurance and safety issues and responsibilities that some would prefer not to have. Notwithstanding the foregoing, there is some benefit obtained by the method of calculation of the damage which overstates the loss in terms of future income. For that reason I reduce the amount awarded by approximately one-fifth or 20%, bringing the amount I award to $285,964. 154 I allow the Griffiths v Kerkemeyer as claimed (albeit understated) being past Griffiths v Kerkemeyer at $28,600. For present purposes past Griffiths v Kerkemeyer is calculated to 17 May 2001. I allow future Griffiths v Kerkemeyer, to the full amount claimed on the basis already stated, namely a deferral for 10 years on the 3 percent totals. I allow interest on the past Griffiths v Kerkemeyer at a commercial rate (say 9 percent) which calculates as $12,870. 155 As earlier stated I accept the unchallenged evidence of Ms Kennedy-Gould, the occupational therapist qualified by the plaintiff and the calculation based upon that opinion which is slightly more than that which has been calculated by the plaintiff. Ms Kennedy-Gould defers any increase in domestic assistance for 10 years at which time it would be 7 hours per week and, a further 10 years thereafter, it would increase to 10 hours per week. The calculation by the plaintiff is for 7 hours per week deferred to 10 years remaining static thereafter. Given the necessary level of uncertainty associated with estimates of domestic assistance for 20 years hence, I accept that the calculation proposed by the plaintiff is an appropriate one. I allow $193,070 for future Griffiths v Kerkemeyer.

Conclusion 156 As made clear, I have determined that the defendant is responsible for the requirements of Regulation 73 and Regulation 74 of the Regulations made pursuant to the Construction Safety Act 1912 (NSW). As a result of that finding, contributory negligence is not applicable. 157 I have, notwithstanding the above determination, found that the defendant is liable in the common law for negligence. If damages were awarded for the common law claim, I would reduce that damage by 20 percent as a consequence of the contributory negligence for which the plaintiff is responsible. 158 I make the following orders:

(i) judgment for the plaintiff in an amount of $913,390;

(ii) the defendant shall pay the plaintiff's costs of and incidental to the proceedings, as agreed or assessed. **********

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