Toomey v Scolaro's Concrete Constructions Pty Ltd

559. The builder, George Scolaro, said that he interpreted plan 18B as requiring that the rail be built to a height of 950 mm, not 1000 mm. He said he followed a detail on the plan, known as Elevation 4, which provided dimensions of the internal balustrades. He said he read Elevation 4 on the plan as being the relevant detail to which he and the fabricator should work. Mr Settle for the architect (supported by some others) submitted that I should reject that contention. Mr Settle submitted that the remarkable variation of height of balustrades throughout the three wings of Balmoral Apartments - ranging from as low as 920 mm to as high as 990 mm - demonstrated that it could not have been Elevation 4 which was being applied. Counsel submitted that I should be slow to conclude that Elevation 4 was followed, when no witness was called from EFT.

562. EFT was not a party to the proceedings, and the failure to call any witness from that firm was not sought to be explained. The evidence of Scolaro, however, does gain support from the analysis contained in Exhibit "J", the record made by Mr Lorich of the balustrade heights throughout the complex. Particularly in Block 3, which was the first constructed, the rail heights are more consistent with an attempt to build the balustrades to 950 mm from the concrete floor than to any other height, and Scolaro understood (wrongly) that the height was to be measured from the unfinished floor. What can be said with confidence is that none of the completed rails in Block 3 were built to a height which even remotely suggested that the sub-contractor was attempting to meet a 1000 mm requirement. The closest any rail got in Block 3 was, in one instance, 955 mm, when measured from the concrete.

565. In contrast, most of the balustrades in Block 2 and many in Block 1 were built to heights of 980-990 from the carpet, consistent with an achieved height of 990-1000 mm from the concrete (allowing 10-20 mm for the carpet). That change in the situation of balustrades built after completion of Block 1 is consistent with the evidence of Scolaro that it was only after the balustrades had been fabricated and/or installed for Block 3 that the required height of 1000 mm was discovered. Scolaro's evidence is also supported by that of Mr Caverzan, the foreman carpenter, who also said that it was only after the balustrades had already started to be installed that he, among others, learned that they should not have been built to 950 mm, as he said the plan required, but to 1000 mm. I accept Caverzan's evidence as to this.

568. I am satisfied that Scolaro's evidence is correct that the builder and sub-contractor were working to Plan 18B and in particular to Elevation 4, and thus believed that the balustrade should be at a height of 950 mm from the concrete. The inference to be drawn from absence of any witness from EFT is not of sufficient weight to cause me to doubt the correctness of this conclusion.

PRELIMINARY ISSUE (B): WHO KNEW THAT THE BALUSTRADE WAS BELOW 1000 MM?

572. Mr Scolaro said that having commenced (through his sub-contractor) the construction of balustrades for Block 3 by reference to Plan 18B, he discovered that the Code had changed and that it was now required that the balustrades be built to 1000mm. He said he discovered this "change" by virtue of receipt of a two page memo which arrived from the Master Builders Association. He is plainly wrong as to that, in that there was no change introducing a requirement of 1000 mm made to the Code at this time. The balustrade height of 1000 mm had been the requirement for about 10 years, and was well understood by most people in the industry to be so.

575. There are many uncertainties, and a good deal of confusion, in the evidence of Mr Scolaro, but I am quite satisfied that he is an honest man, even if, at times, his evidence needed to be treated with caution, not because he was being dishonest, but because his recollection was unreliable. Yet, however it was that the knowledge was acquired, it seems probable that Scolaro did indeed discover that the Code required a height of 1000 mm at some time after work on the balustrades had commenced. He says that among others, he discussed that with Mr James of HCML, and James measured a balustrade in his presence and confirmed that it was at 950 mm, not 1000 mm, above the concrete. To correct the problem would have required a major refitting of the balustrading. Scolaro says that he suggested a solution to the problem, that a rail would be run above the top horizontal rail, being affixed to the posts which were 50 mm higher than the top rail. This proposed rail was known as a "corimano", and would have instantly raised the balustrade to a height of 1000 mm. He says that he discussed this proposal with a number of people. Several witnesses agreed that he had done so, and some suggested that the architect may have been present when the discussion of the non compliance of the installed balustrade with the Code was discussed. Scolaro said that James told him that he would discuss the matter with his superior, Mr Manie, and later told him that the proposal for a corimano was rejected.

578. The architect denies ever knowing that the balustrade was below the height of 1000 mm which he said was required not only by the Plan but also, in his opinion by the Code. Mr James, of HCML, also denied such knowledge, as did Mr Manie of HCML. Mr Settle, for the architect, submitted that if HCML knew of the low rail, but the architect did not, then any deficiency in the drawing on the Plan could not be causative of injury to the plaintiff, because the chain of causation was broken by virtue of the knowledge of HCML, which failed to correct the deficiency when it had the opportunity to do so.

581. Both James and Manie denied having learned before the accident that the rail was below what they considered was the 1000 mm Code requirement. As counsel for HCML properly submitted, it is a serious allegation to make that they knew of a breach of the Code and deliberately chose not to correct it. Scolaro's evidence as to discussions he had with others about the height of the rail has been the subject of strong attack by a number of counsel. Mr Riordan, for HCML submitted that it was untruthful evidence.

584. It must be kept in mind that Scolaro was not represented by counsel before me. Although his company was a party it was in liquidation and took no part in proceedings. Scolaro was called by counsel for the plaintiff, with little preparatory discussion, and he had obviously had little recourse to documents prior to giving evidence. In addition, whilst he was keen to give evidence in English, despite the fact that an interpreter was present in court, his use of English was at times somewhat idiosyncratic. He was also somewhat excitable, prone to answer questions before the questioner had completed them and to respond to multiple part questions in a way which did not always do himself justice. I believe he was deeply anxious to defend his reputation. I think it likely that he was particularly concerned to rebut the suggestion that negligence on his part contributed to the injury to the plaintiff. Those are factors which might both consciously and unconsciously cause a witness to give false or inaccurate evidence.

587. I think that Scolaro had difficulty, at times, recalling the sequence and detail of events which he was describing, not a surprising matter, given the age of the events and the fact that he had not had the same opportunity as other witnesses to have been prepared for the giving of evidence by being reminded of relevant documents in conference with counsel. For all of the deficiencies described above, and having regard to all of the dangers I have identified, Scolaro impressed me as an honest person, who, whatever his deficiencies as a builder, was not trying to defend his honour by telling lies. Although there were parts of his evidence which conflicted with that of others and implausible explanations were sometimes offered by him I was impressed by the extent to which on significant issues it gains support from other evidence.

590. A significant problem with Scolaro's evidence is that I am satisfied he has at times drawn together in his recollection what I believe were more than one meeting or discussion. Furthermore, in seeking to find support for his account (which account he believes to be the truth) he was prone to seize on documents or records presented to him and to interpret them as constituting such support when, I am satisfied, they were often not saying what he read into them. His evidence, however, does not stand alone, and for all of its complexities and confusions, it gains very significant support from other witnesses and by reference to known events.

593. It is not entirely clear what first caused Scolaro to become concerned about the height of the balustrades. He suggested that the discovery that the external balustrades were too low was the precipitator. The external handrails had been intended by the architect to be above tiles, but a decision was taken to abandon the tiles, then that decision was reversed. When the external balustrades were finally installed the presence of tiles meant that the rail was below 1000 mm. The problem with the external balustrades was discussed at the site meeting on 5 April 1995, which would suggest that it could only have been raised within the week before that date, since it had not been addressed at the previous week's meeting. Scolaro said that the problem of the height of the internal balustrades was discussed at a site meeting, and he nominated the meeting of 5 April 1995, which may or may not have been correct. I do accept that the internal balustrades were discussed at a site meeting, however.

596. Scolaro said that before it was discussed at a site meeting he had already spoken to Mr James of HCML. He said that he and James had together measured one of the handrails, at 950 mm. Then, at a meeting with James (not necessarily the same day) Steven De Pellegrin of Scolaro's, was also present, and De Pellegrin placed two pages on the table which had come from the MBA, stating the Code requirement for the height of the balustrade. They also looked at plans. I am satisfied that either on that occasion or on a separate occasion but prior to the formal site meeting at which the issue was discussed, Scolaro suggested a solution to the problem would be the installation of a corimano. I believe that Scolaro discussed that idea more than once with James. James said that he would seek instructions from his superior, Graeme Manie. Scolaro said James asked him to give an estimated cost of the corimano, and he did so.

599. Mr Riordan submitted that Scolaro's evidence as to the corimano being related to the height of the rail, and as to James' awareness of that fact, was a recent invention, Scolaro not having made those suggestions in his witness statement which had been filed prior to trial when his company still had a solicitor acting for it. Mr Riordan submitted that I should give weight to the fact that despite his warning to Mr Casey, in open court, that he would make this submission of recent invention, no evidence was called to rebut the allegation. I do give weight to that contention but I have regard, also, to the fact that Scolaro was not the client of Mr Casey, that the challenge was made at a time when, through no fault of Mr Riordan's, a very long trial and the second attendance of Mr Scolaro as a witness was finally approaching its end, and that Scolaro's evidence on these allegations did not stand alone.

602. I am satisfied, on the balance of probabilities, that a meeting took place with James - about the low height of the balustrade - at which Scolaro, De Pellegrin and also Caverzan were present. I am unsure whether some of the events which Scolaro described occurred at this particular meeting rather than at a separate meeting, but I am satisfied that Scolaro's account is fundamentally correct as to the events of this meeting. Caverzan confirmed that he had attended such a meeting with James, Scolaro and De Pellegrin to discuss the rail height. De Pellegrin's account of a meeting with James has some differences to that of Caverzan, and may well be of yet another meeting, but there are also some important common features.

605. Caverzan believed that at the meeting he attended others were present too, possibly the architect, but it was not a formal weekly site meeting (which meetings Caverzan did not attend). A lot of the balustrading was already completed at this time. Caverzan had learned about the requirement of 1000 mm for the rail. He thought there had been a change in the Code, but said he may have been told that by Scolaro. He could not recall there being discussion about the Code: he recalled the discussion being about the Plans. At the meeting, Plans were spread out on the table and there was discussion about the problem which the low rails presented and what could be done about it. Caverzan said that James said to leave it as per the drawings. Caverzan said that at the end of the meeting James said: "Fuck it, leave it at 950". Caverzan did not give evidence of a discussion about a corimano at the meeting he attended. He said he could not remember what possible solutions were discussed, but when asked in court, generally, whether the raising of the top rail to the top of the posts would have been one possible solution he said it would look poor "cosmetically" and would not have been in accordance with the architect's plan.

608. De Pellegrin denied that he had learned, at any time, prior to the accident that the balustrades had been built lower than the Code requirement. He said that he did not know there was a Code requirement of a metre, and thought the Code allowed a range of heights between 900 to 1100 mm. He agreed, however, that he attended a meeting with James at which Scolaro proposed a corimano, and that, when asked, Scolaro gave a verbal quote of $14,000 to $17,000, which James rejected. De Pellegrin said that this might not have been a formal site meeting. He said it was possible that Caverzan had been present when the corimano was discussed. In rejecting the proposal for a corimano, James said the cost sounded excessive. James said: "Is it on the drawings? No. Fuck it, don't worry about it".

611. As Mr Riordan noted, neither the terms of the phrases attributed to James and the circumstances in which Caverzan and De Pellegrin said the phrases were uttered are identical. However, if it is accepted that a corimano was under discussion in De Pellegrin's presence when one such phrase was uttered the probable correlation between the two phrases, and that it was a discussion about the low height of the balustrade, gains significant weight.

614. As I have said, De Pellegrin denied that the corimano proposal had anything to do with a problem of height of the balustrades. He said it was an idea advanced by Scolaro just as an aesthetic improvement to the stairwell. However, in my opinion, it is highly improbable that Scolaro raised the idea for aesthetic reasons. The fact that (in some instances) Scolaro said that it was a wooden top rail which he had proposed, rather than a steel rail does not suggest to me that it was more likely that the corimano was proposed as an aesthetic device. Given that the project was one where HCML had undertaken very severe cost cutting at every opportunity, notwithstanding that it was at the cost of the aesthetics of the project (the front entrance being one such instance) and given the fact that the project was greatly behind schedule, it is utterly improbable that Scolaro would have made his suggestion on aesthetic grounds.

617. It was suggested that one possibility was that Scolaro hid from James and the HCML employees the real reason for the proposal, namely, that he had learned that the balustrades were in breach of requirement for a 1000 mm rail set by the Code and/or Plan 18B. I do not accept that, because even if the corimano was not discussed when Caverzan attended a meeting with James I accept his evidence that the meeting he did attend was one where all present knew the balustrades were below the height stipulated in the Plan.

620. James denied that he was aware of the problem of the height of the balustrades. He denied measuring the rail and he denied giving instructions to leave the rail as it was. He denied having any meeting such as Scolaro and Caverzan discussed. Indeed, he denied that a corimano had ever been discussed at all, but there is no doubt that it was, and on more than one occasion. I was not impressed by his evidence, but it does not stand alone. James' denial that he had knowledge of the low height of the balustrade gained some support from the evidence of Manie and McNamara, and, apparently, also from De Pellegrin and Pradolin, which I will separately discuss. But, as I shall discuss, on balance I am satisfied that James did have such knowledge.

623. In early 1997, after the plaintiff's accident, proceedings were issued against the builder and Bigridge Pty Ltd. Hudson Conway were joined as third party. Scolaro said that he was invited to attend a meeting with Manie and McNamara, together with De Pellegrin, at Hudson Conway's office at the Atrium. Scolaro and De Pellegrin agree that at that meeting the problem with the low rail was discussed, and possible solutions. Among the solutions discussed was a corimano, yet again. The discussion of a corimano on this occasion was not that which De Pellegrin and Scolaro said had earlier occurred with James. There is no doubt that this was a separate discussion about a corimano to that in which James participated. Scolaro told me that it was suggested at the meeting that he should attend the site and fix the problem. He said he would, but only if he was paid to do so, since it was not his problem; he had followed the plan. Both Scolaro and De Pellegrin said that the possibility of applying to the Building Appeal Board for a Code dispensation was discussed. Scolaro said that he complained that he had been told that HCML would apply for a dispensation, and he wanted to know why they had not done so, to which Manie replied that it was a bit late now. De Pellegrin's recollection was somewhat different. He recalled that Scolaro had said that in following the plans he was not to know if HCML had obtained dispensations for the low rail which was shown as approved on the plan. De Pellegrin agreed as to the HCML response, however, that HCML had not sought any such dispensation and he agreed that when Scolaro had asked why they had not, the response was that it was "a bit late now". Scolaro told me that on an earlier occasion, after he had learned of the 1000 mm Code requirement he had discussed the situation with Manie, who had suggested that a dispensation might be possible from the Building Appeal Board. Manie denied having had such a discussion, or having said that HCML would apply for a dispensation.

626. De Pellegrin's version of the meeting with McNamara and Manie is at least consistent with Scolaro denying liability for following the plan in the first place, i.e. that for all he knew at the time, the approved plans might have reflected the fact that a dispensation had been obtained; thus he was entitled to apply the plans and not to query them. It may be that Scolaro is wrong in his suggesting that Manie had earlier either contemplated the possibility or agreed to apply for a dispensation. I do not consider that Scolaro was giving intentionally false evidence as to that. It is more likely that he is simply confusing the circumstances and terms in which dispensation discussions had arisen during the course of the project. It may have been that the question of a dispensation was discussed with James, not Manie, since I am satisfied that James did know of the Code problem when the corimano was discussed. Whether Manie was similarly aware is not so clear.

629. In his evidence, De Pellegrin did appear to acknowledge that there had been a meeting at the site at which Manie was present, and at which the corimano proposal was discussed. Manie agreed that he had heard of the corimano proposal at some time prior to the meeting which was later held between himself and McNamara with Scolaro and De Pellegrin to discuss the plaintiff's injury. He said that had a quote for a corimano been given by Scolaro to James during the course of construction it is likely that he would have been told about it.

632. McNamara said that prior to the meeting with Scolaro at which the plaintiff's writ was discussed he had actually attended the site with Scolaro to measure the rail and had confirmed it was below Code height. Scolaro denied that that had occurred. He recalled that it was James who had measured the rail, and had done so in 1995, during construction. Whilst I accept that James had earlier measured the rail Scolaro's memory is probably at fault in his denying that McNamara also measured it at a later time. McNamara's own memory of the event was not very vivid, either. According to McNamara, at the site he told Scolaro that it was his fault, but he could not remember whether Scolaro agreed or not. He said that various solutions were discussed, including a corimano, but he did not suggest that either Scolaro agreed that he was responsible to meet any cost or that McNamara told him that any work would have to be done at Scolaro's cost.

635. Both De Pellegrin and Scolaro thought that Scolaro was being set up at the meeting called by Manie and McNamara following the commencement of proceedings, in order that Scolaro take the blame for the defective balustrade, by having him agree to attend the site and to making alterations to the balustrade. I have no doubt that that was the purpose of the meeting. In other words, Manie and McNamara did not directly challenge Scolaro's contention that he was not at fault and that he would only work on the balustrade if HCML paid for it. They did not advise Scolaro that they were exercising their contractual rights to have him correct an error attributable to him. If they were confident that the fault was Scolaro's, alone, it is a surprising omission that they did not advise him, directly, that they were exercising their contractual right to have him correct the problem.

638. Caverzan's evidence came under strong attack. He agreed that his recollection had only recently been jogged as to these events and that he had not recalled the critical comment of James until over the weekend which interrupted the first and second day of his honest and reliable evidence. I formed a firm belief, however, that he was giving honest evidence. Although it was suggested that he was taking a side in the proceedings I saw no basis to suggest that he was so motivated. His evidence was in many respects very critical of Scolaro and having had the opportunity to hear much evidence about the project before Caverzan gave evidence I assessed his criticisms as being well founded.

641. De Pellegrin's denial that he knew the balustrade was too low and that it was for that reason that the corimano proposal was advanced was strongly challenged. He acknowledged that a letter dated 13 June 1995 written by him to the sub-contractors was open to the construction that he was requiring that "all internal stair balustrading" for Block 1 and 2 be altered so as to comply with "the contract drawings, specification and Building Code of Australia". Both Mr Gillies and Mr Casey placed considerable emphasis on the terms of the letter which De Pellegrin sent to EFT. The typed letter undoubtedly supports the interpretation (indeed, De Pellegrin acknowledged that it was the only interpretation which was open) that he was instructing EFT to rectify internal balustrades in Blocks 1 and 2 so that they complied with the plans and the Code. The omission of or similar direction as to Block 3, having regard to the fact that the Block 3 balustrades (unlike Blocks 1 and 2) were probably completed at this time supports the inference that the decision had been taken ("Fuck it, leave it at 950") to ignore the height problem of the internal balustrades in Block 3, no doubt due to the pressures of time and cost. De Pellegrin, however, said that the typed letter mistakenly omitted the word "external", and the instruction was intended to relate only to external balustrades. A handwritten draft of the letter supports that assertion by De Pellegrin and having regard to the fact that Tsigaridis of EFT was not called to give evidence (whilst recognising that HCML or Davidson Hughes could also have called him) I am not prepared to draw the inference from the letter which Mr Gillies and Mr Casey urged upon me. However, whilst I do not place weight on this letter for that purpose the evidence of De Pellegrin that the corimano proposal had nothing to do with the height of the internal balustrade was not persuasive. I do not accept that he was unaware of the problem of the low height. Caverzan's evidence strongly supports Scolaro's contention that De Pellegrin did know of the problem and whether or not the letter of 13 June 1995 is relied on, the record of the balustrade height in all these blocks compiled by Lorich clearly demonstrates that the balustrades in Blocks 1 and 2 were built to a different intended height than had been the target for Block 3. Where De Pellegrin's evidence conflicts with that of Scolaro and Caverzan I prefer their evidence to his, which was less than frank in many respects.

644. Much time was consumed examining the circumstances of a site meeting held on 5 April 1995 in which the minutes recorded under item 27.04: "Handrail to be installed as per detail. Handrail at end of buildings returned to end wall". Scolaro became convinced that the first sentence was the record of an hour long discussion at a site meeting when he was directed by James to leave the internal balustrade at 950 mm. Those in attendance at that meeting denied that the entry referred to anything other than the external handrail problem which had emerged after it was discovered that having been built on the understanding that there would be no covering to the surface, in fact tiles had been added later, thus making the rail too low. I am satisfied that this minute was not referring to internal rails. Scolaro, I am quite sure, was wrong in his belief, but convinced himself that it was so because he was keen to demonstrate that his account was supported by something in writing. Pradolin, who impressed me as an honest witness, denied that the minute could have referred to internal rails. Scolaro's incorrect evidence in this respect requires careful consideration, and the balance of his evidence needs to be assessed in the light of that error.

647. I do believe, however, that whilst the minute was concerned with external balustrades internal rails were also discussed at a formal site meeting, and there is every likelihood that it was this one. The architect said that he was not present when any such discussion was held, and it is not disputed that he left the meeting on 5 April 1995, for some time, for the purpose of inspecting the external balustrades. It is likely that he missed the discussion. If, however, the discussion about the height of internal balustrades occurred after an earlier discussion on that topic had taken place at a meeting which was not a formal site meeting (as Scolaro says was the case), at which Scolaro had been told by James to leave the rail at 950 mm, and that decision was later merely maintained by James at the site meeting, then no action would have been required to be taken. In those circumstances, Pradolin said, there would be no minute about the item, as no action was to be taken.

650. I am quite sure that had the discussion been in terms of permitting a breach of the Code to continue, then Pradolin would have remembered it, and opposed that suggestion. But the discussion may not have been in such terms at all. He accepted that it was possible that a discussion at the meeting about the requirements of the Plan (rather than the Code), in such circumstances, would not be a matter that he would remember. Pradolin did not know at that time what height the Code called for. He did not have knowledge of the Code details. A discussion between Scolaro and James about whether a Plan 18B requirement of 950 mm should be adhered to might not alert him to the Code issue.

653. Pradolin did have a recollection of a corimano proposal being discussed, but he did not recall hearing any cost estimate for it, and believed it was advanced as an aesthetic suggestion, and also to ensure a continuous rail for safety reasons. It is highly likely that it was discussed at a site meeting, but there is also no record of such a discussion in any site minute, presumably because no action was to be taken. If there was discussion about a corimano in a site meeting, as Pradolin believes, that does demonstrate that internal rails were discussed, and yet not recorded, in that instance.

656. Although there was much in the evidence of Manie and McNamara which was vague and unpersuasive, the same may be said for parts of Scolaro's evidence, and whilst there is a very good chance that Manie knew of the low height of the rails during the course of construction I do not draw that conclusion, on the balance of probabilities. For the reasons I have given, however, I am satisfied that James had that knowledge.

659. I conclude that James did tell Scolaro to leave the balustrade as it was. In reaching that conclusion it does not necessarily follow that James acted with a deliberate disregard for the legal requirement that the balustrade be built in compliance with the Code. It seems to me highly likely that although the terms of the Code were discussed in meetings with Scolaro, at least, and although James said he knew the Code requirement was 1000 mm, the instruction to leave the balustrade as it was, "at 950" or "as per the drawing", could have had a more innocent (but nonetheless inappropriate) basis.

662. Scolaro said that James and Manie had spoken of the possibility of getting dispensation (presumably from the Building Appeals Board). James and Manie denied that discussion. After the accident, when Manie and Scolaro met together with De Pellegrin and McNamara, Scolaro did ask why HCML had not sought a dispensation. If it was James, and not Manie, who had spoken of dispensations with Scolaro, or even if neither had actually discussed the matter with Scolaro, it is possible that having learned the rail was built to 950mm, James had considered the obtaining of a dispensation to be a possibility which could be further explored if the completed balustrades were not passed by the inspector. Although the opinion of the experts before me (including that of James, in his evidence) was generally that it was unlikely that a deficiency of 50 mm might be the subject of a dispensation, one witness, Mr Castles, did not discount that possibility, outright. Furthermore, James may have thought the interpretation of D2.16 was not clear cut. Scolaro said that when options were being discussed James had ventured that since the posts had reached 1000 mm and Elevation 4 was drawn to 950 mm it was arguable that the Code was complied with. If there are such relatively innocent explanations, James chose not to advance them before me, and I am unable to draw any final conclusion as to the explanation for his decision to leave the balustrade as it was built.

665. Thus, I conclude that HCML's site manager, James, had knowledge prior to the accident that the rail had been built to a height of 950 mm and not to a height of 1000 mm. I conclude that he decided not to take any steps to correct that, undoubtedly on grounds of costs and delay. I do not conclude that he did so in conscious defiance of the Code, but when he did so he was acting with the implied authority of HCML.

668. Having determined those questions of fact I now analyse the responsibility of the defendants, if any, for the plaintiff's injury.

672. The case against the architect alleges that he was negligent in drawing plan 18B and in failing to conduct any or any adequate inspection of the work under the "design intent" or "defects" conditions of his contract, or as required at common law.

676. On behalf of the architect Mr Settle first submitted that I should conclude that the balustrade was not built by reference to Plan 18B at all, in particular, not to Elevation 4. I have earlier rejected that contention.

679. I conclude that there were a number of deficiencies in Plan 18B. The Detail on the plan which illustrates a post and the dimensions of its rails is in conflict with Elevation 4, which appears nearby. The defects of the Plan are as follows:

(a) The height of the top rail on the Detail is shown to be 1000 mm, whereas the height to the top of the top rail in Elevation 4 is 950 mm, and the height to the post is shown at 1000 mm;

(b) Although the architect said that the intended height was to be 1000 mm, that was intended to be measured from above the finished floor surface, but the Detail actually shows it to be measured from the concrete (the measurement of 1000 mm to the top of the post on Elevation 4 does not specify whether it is to be measured from the concrete or the carpet);

(c) A figure of 50 mm which appears on Elevation 4 was intended to reflect the thickness of the pipe of the rail, but when the rail was changed to 40 mm Elevation 4 was not changed although the "Notes" on the plan were changed accordingly. It was the 50 mm figure, which happened to appear at a point which related to the gap between the top rail and the top of the post, which led Scolaro to conclude that a 950 mm top rail height was required;

(d) There were differences in the distance between the top of the rail and the top of the post as shown in the Detail (45 mm) and elsewhere on the plan (50 mm).

685. The building consultant, Mr Lorenzini, said that a reader of 18B was confronted by a number of inconsistent measurements relating to the balustrade. Although the Detail showed a height of 1000 mm that height was measured from the concrete, and if allowance of up to 20 mm was made for the likely thickness of the floor covering, that would suggest that the architect intended the height to be in the order of 980 mm. On the other hand, Elevation 4 showed a height of 950 mm. In various other places on 18B however, (with respect to other units) a measurement of 1000 mm was consistently shown.

688. In Voli v Inglewood Shire Council[10] Windeyer J held:

"An architect undertaking work in the way of his profession accepts the ordinary liabilities of any man who follows a skilled calling. He is bound to exercise due care, skill and diligence. He is not required to have an extraordinary degree of skill or the highest professional attainments. But he must bring to the task he undertakes the competence and skill that is usual among architects practicing their profession. And he must use due care. If he fails these matters and the person who employed him thereby suffers damage, he is liable to that person. This liability can be said to arise either from a breach of his contract or in tort."

692. As to those to whom he owed his duty, persons in the position of the plaintiff would plainly be included. Windeyer J held:

"It is now beyond doubt that, for the reasonably foreseeable consequences of careless and unskilful conduct, an architect is liable to anyone whom it could reasonably have been expected might be injured as a result of his negligence. To such a person he owes a duty of care independently of his contract of employment."

696. It was conceded by the architect that Plan 18B contained ambiguities. It was submitted that these were minor errors which could not have misled any competent builder or tradesperson. The Project Specifications required that the builder use skilled tradesmen and the General Conditions of Contact specified that the builder had to obtain the permission of the project manager, HCML, for the engagement of sub-contractors. The General Conditions required that the work be done in accordance with the Code. Clause 8.2 of the General Conditions of Contract specified (as was well understood within the industry, in any event) that drawings to larger scale were to take preference to those to smaller scale, hence, Mr Settle submitted, Scolaro should have known he had to work from the Detail, not Elevation 4. In these circumstances, he submitted, no reasonable architect could have foreseen that Plan 18B would have been read in so perverse a manner as to conclude that it required a rail to be built to 950 mm instead of 1000 mm.

699. Notwithstanding the fact that the many independent expert witnesses who gave evidence before me said that it was understood in the industry at this time, and should have been known by any tradesperson reading the plan, that a height of 1000 mm was required by the Code it was the overwhelming opinion that Plan 18B was not only not compliant with the Code but offended proper principles in design by containing inconsistent dimensions and ambiguities. Although Mr McKernan said that all plans contain slips and ambiguities he accepted that there were mistakes which should not have been made on the plan. In fact, not only Scolaro but also the experienced builder De Pellegrin, and also Caverzan, read the plan as requiring a rail of 950 mm. So too, he said, did the building inspector, Andrew Smith, and so must have the sub-contractor. Each of Scolaro, Smith and De Pellegrin also interpreted the Detail as being related solely to the external rails at the entrance of the building, among other reasons because on the Detail referred to Tiles as the floor covering, but more importantly, because they mistook part of a drawing which was intended to merely suggest a sloping pathway to be an arrow directing the reader's attention from drawings which showed the external entrance of the building towards the Detail, as though the Detail only related to the external entrance. Even experts such as Mr Lorenzini, Mr Neale and Mr Castles said that Elevation 4, incorrectly, specified a height of 950 mm. No expert, however, said it was reasonable for Scolaro and others to have read the plan as though the Detail was relevant only to external balustrades.

702. In my opinion, it cannot be said that a reasonable architect could not reasonably foresee that plans might be read by those with less skill and experience in their ability to interpret them than that held by more competent tradespeople. If plans are drawn with ambiguities in them they are capable of misleading the reader, and they did so in this case. The architect contends that if the builder really was uncertain as to what was required of him he merely needed to have raised his concern with the architect or the surveyor or the site supervisor. The difficulty in this case was that the builder did not perceive any ambiguity at all. He read the plan as providing the unambiguous advice, in the one section of it which expressly related to the internal stairs, as requiring the balustrade to be built to 950 mm above the concrete.

705. Mr Graham Neale, a consultant surveyor, said that having been presented with Plan 18B a reasonable building surveyor, including himself, would have issued the permit. They would do so because of the numerous references to what he believed would be recognised within the industry as being the requirement for one metre height of a balustrade. With that knowledge one would read the plan as indicating that intention by the architect. He said it would be reasonably common for plans to contain small ambiguities or inconsistencies. He agreed, however, that Elevation 4 showed a height of 950 mm from the floor. He agreed that there were inconsistencies between the Detail and Elevation 4. He said that he himself would not have looked at the plan in such fine detail as to pick up the ambiguities on it. Curiously, however, Mr Neale doubted whether it was the job of a surveyor to pick up not only the obvious defects in a plan but also the smaller, not so obvious, defects. He agreed, however, that having once identified that there were anomalies he would have clarified that with the architect. He agreed that surveyors traditionally might highlight ambiguities on a plan, in particular as to safety items.

708. It was contended during final submissions that the deficiencies in the drawing of Plan 18B were so minor that they amounted to the merest of slips of the pen, which should have been obvious to a reader to have been mere slips, and which should not be implicated in a consequence so dire as that which befell the plaintiff. The short answer is that on any architectural design or drawing - just as for any engineering drawing - precision, attention to detail and clarity are as much essential elements as is aesthetic vision. The small scale of Elevation 4 was undeniably misleading; many expert witnesses read it as saying that the height to the top of the bar was 950 mm. The mere slip produced a consequence, which when compounded by the negligence of others, led to a rail being built which was just sufficiently low to place the bar against the back of a person at a point where he was in great peril of falling and suffering severe injury. Many a disaster is the product of a very small mistake or of inattention to detail.

711. In my opinion, in drawing the plan in the manner which he or (more precisely) his office did the architect was negligent. Mr Settle submitted that even if that were so, if HCML, through James, knew of the defect in the balustrade then the chain of causation between the plan and the injury was broken; HCML could have prevented its occurrence but chose not to take the steps which would have done so.

714. The question of causation is a matter of applying common sense to the facts of a case[11]. In my view, the architect cannot avoid his own responsibility for the negligently drawn plan by contending that others had the opportunity to have corrected his error or to have taken steps to prevent consequences which would otherwise have flowed from it. Whatever may be the responsibility of those who did not avail themselves of that opportunity, the decision not to do so could not be said to have broken the chain of causation which commenced with the original act of negligence.

718. Mr Settle submitted that the role of the architect in this project was significantly constrained not only by the terms of his contract but also by virtue of the fact that Hudson Conway, a major construction company in its own right, was effectively in control of the entire project. For the construction period HCML agreed to pay the architect only $10,000, whereas the recommended fee from the Royal Australian Institute of Architects would have been $92,800 and one experienced architect, Mr Castles, said that on a project of this size with a project cost in excess of $6m, he would have charged $120,000. Whilst accepting that the remuneration for the job could not determine the common law responsibilities of the architect, Mr Settle submitted that the terms of remuneration made it reasonable that the architect would, as he said was the case, perform only those duties as he was obliged to do under the contract. Hudson Conway, itself, had many experienced persons attending the site, including its superintendent Manie, its site manager James, and its on-site inspector Noonan.

721. Mr Settle, counsel for the architect, submitted that whilst his client's duty of care could not be determined by the terms of his own contract that was not an irrelevant consideration. He referred to a passage in the judgment of Windeyer J, in Voli, at 85:

"First, neither the terms of the architect's engagement, nor the terms of the building contract, can operate to discharge the architect from a duty of care to persons who are strangers to those contracts. Nor can they directly determine what he must do to satisfy his duty to such persons. That duty is cast upon him by law, not because he made a contract, but because he entered upon the work. Nevertheless his contract with the building owner is not an irrelevant circumstance. It determines what was the task upon which he entered. If, for example, it was to design a stage to bear only some specified weight, he would not be liable for the consequences of someone thereafter negligently permitting a greater weight to be put upon it."

725. The terms of the Architect's contract are contained in the letter of appointment from HCML to the Architect, dated 4 June 1993. For the purpose of this proceeding, the Architect's tasks can be divided into two stages: -

730. Under the "contract documentation" stage the Architect was required, amongst other things, to prepare detailed working drawings and specifications for the whole of the project works.

733. Under the "construction stage", the services which the Architect was required to undertake included the following: -

* "inspection of the works as required by the Project Manager to ensure compliance with the design intent;"

* "Provision of inspections for defects at the time of practical completion; certification as appropriate and detailed defects reports as required by the Principal."

739. Mr McKernan said that he did not in fact learn that the balustrade was built to 950 mm, rather than 1000 mm. He denied that he had been present at any meeting or discussion at which the deficiency in the balustrade had been discussed. It was urged on me by Mr Casey and other counsel that I should conclude that this was not the truth.

742. The suggestion that the architect may have been present at meetings where the defect in the balustrades was discussed came from Scolaro, Caverzan and De Pellegrin, but each one of them expressed uncertainty about that. Insofar as it was suggested by Scolaro that it was during a site meeting at which he discussed with James the deficiencies of the rail and the appropriateness of a corimano, Scolaro expressly recalled that the architect had left the meeting, for the purpose of inspecting the external rails, and he agreed that McKernan may well have been absent when any discussion about internal rails took place. Had he heard that the rails had not been built to 1000 mm McKernan said he would have regarded that as being a breach of the Code, and he said that he would not have stayed silent if that had been drawn to his attention, especially not if it was suggested that the breach should be ignored.

745. Mr McKernan was subject to firm cross-examination. He said that he did not have the skill which some witnesses professed of being able to judge the height of a balustrade simply by looking at it or standing alongside it. He was not alone among expert witnesses who said they lacked that skill. His memory was shown on some occasions to be erroneous, but the errors seemed to me to demonstrate not only tiredness after a very lengthy cross examination, but also a complete lack of guile rather than any lack of frankness, and, if anything, confirmed me in my clear belief that his evidence was truthful and should be accepted as to his lack of knowledge. I accept, too, that he had not noticed that the rails were apparently low. I accept his evidence that whilst he was anxious not to take on responsibilities of inspection for which he was not contracted he would not have ignored a breach of the Code which came to his attention, especially not one concerned with safety. His conduct in reporting a gap in the external railing, which he observed to be in breach of the Code, demonstrates the likely approach he would have taken had he learned of a Code breach in the internal balustrade. Given that no witness says confidently that the architect was present at any relevant conversation about non compliance, I am confident that my conclusions in these respects are correct.

748. The question, however, is whether he should have conducted inspections which would have disclosed the problem.

751. It was accepted before me that the phrase "design intent" has an industry meaning, and I will refer to such evidence. In my view, it is clear from the contract that it was something different to an "inspection for defects".

754. Mr James gave no direction to the architect as to what should comprise inspection for design intent. The concept was variously described. Mr Manie said it related to the vision which the architect had intended for the design of the project. He expressly denied that it had anything to do with inspecting for Code compliance. Mr McKernan said he understood it to mean the look of the building; it concerned what the intent of the architect was when he designed the building. Mr Castles said it was about the aesthetics of the design. Mr Pradolin said it was about the architect's vision; he said that the original drawings by the architect would convey to purchasers the concept they were purchasing. Both Mr McKernan and Mr Manie said it extended to the question whether the units that were being provided to the purchasers contained what they expected. So the layout, number of cupboards and other such details of the units would be inspected to see whether what was constructed was what had been promised. Mr Caulfield also said that such matters were part of design intent, to see that the purchasers were getting what they expected in their units, that the quality was as expected; that is, matters of cosmetics. Lorenzini agreed that if the contract provided for the architect to make inspections relevant to ensuring design intent had been met, that would be understood to relate to the finish of the product, as well as to the architectural features.

757. Architect, Robert Caulfield, called as an expert witness on behalf of the fourth defendant, stressed that the architect, here, had not been contracted to administer the building contract, so therefore he would not be expected to measure the balustrade, and in examining for design intent would not look at issues concerned with building compliance and the structural nature of the building, but would limit himself to visual items, within the apartments themselves, predominantly. His inspection would be concerned with the finish of the apartments. Design intent, in his view, would comprise probably 70 percent interior of the units, 20 percent the external facade of the building and its cosmetics and 10 percent other areas which might be landscaping, external areas, common areas and similar matters. You would pick up something obvious on internal stairs such as items cracked or broken. He said that under a contract such as this the project manager does much of the work that an architect traditionally would have done and the architect becomes subservient to the project manager. He regarded it as the project manager's responsibility to ensure that safety aspects of the site were inspected and complied with the regulations. The project manager had control and could give directions to the architect as to what was to be inspected.

760. Mr McKernan said his design intent inspection was confined to "intramural the units and external appearance of the building". He did not inspect the stairways for design intent, although he would have observed them constantly as he went from unit to unit. He did not consider that it was his job to inspect balustrades for Code compliance, as part of a design intent inspection. He agreed that the attractiveness and safety of a balustrade were considerations in the designing of it. Mr McKernan said that he would not have taken it upon himself to conduct a wider inspection than he was contractually obliged to conduct, because to do so would lay him open to a never ending expansion of his functions, although he had no contractual obligation. I have no doubt that the very small fee which he was being paid was one reason why Mr McKernan was determined not to undertake tasks which he was not obliged to undertake, but another was the undesirability of apparently assuming responsibility in areas which were other peoples' responsibility. Had he in fact learned of a safety problem such as rails below Code height then he would have drawn that to the attention of appropriate persons, but he would not go out of his way to find such defects.

763. The approach adopted by McKernan has to be seen in the light of the role of Hudson Conway. Whereas architects had traditionally played a role in a project as the owner's representative, and took wide ranging responsibility for its completion, the advent of project managers such as Hudson Conway meant that the architect's role was now much more confined, and in the case where Hudson Conway had its own personnel, including a defects inspector, on site, and had engaged surveyors and building inspectors to inspect items such as balustrades, then the architect was being paid for a limited role and would not willingly go beyond that role. The question is whether the architect was under any duty to go beyond his contractual obligation so as to conduct a Code compliance inspection as part of design intent inspection. I do not consider that a reasonable architect, in those circumstances, was obliged to do so.

767. There can be no doubt that a defects inspection could have included inspecting the balustrades for compliance with the Code. The question then is, was the architect obliged to conduct such an inspection? The terms of his contract said he was not, unless "required by the Principal", which was Davidson Hughes or its project manager HCML. The short answer to the question is that there is no evidence that the architect was ever required by the Principal or HCML to conduct such an inspection.

770. Whilst the expert architect witnesses agreed that the contractual terms would not mean that an architect was able to turn a blind eye to safety defects of which he was aware, none suggested that McKernan was under any duty to conduct compliance inspections without being instructed to do so and without being obliged to do so under his contract. Furthermore, I do not consider that any common law duty would extend so far.

775. Bruce Thomas and Andrew Young accepted, in their evidence, that their task required that they not certify compliance unless the plans disclosed unambiguously that the balustrade was designed to be at the height of 1000 mm and the balustrade was built at that height. A failure to attain the height of 1000 mm meant that the balustrade was not compliant unless either there was a dispensation from the Building Appeals Board or it could be demonstrated that the rail nonetheless restricted persons from accidentally falling off. Since they had no belief, nor basis for any belief, that the rail as built did so restrict persons, and since I have held that as a matter of fact it did not, there is no question but that the balustrade was non compliant. Thomas agreed that the Detail, whilst showing 1000 mm, indicated that the height was to be measured from the bare concrete which, he agreed, would lead to a height less than 1000 mm, and would not comply with the Code.

778. The case against the second defendant, Bigridge Pty Ltd, the company of Bruce Thomas & Associates, was made on several bases. In the first place, it was said that Bigridge, when Bruce Thomas was himself attending to the file, was under a contractual, statutory and common law duty to inspect Plan 18B (or its predecessor drafts) for compliance with the Code, and failed to detect the fact that it was not. Secondly, to the extent that the individual responsibility for checking the plan was passed to Andrew Young by Bruce Thomas, the company, Bigridge, continued to be vicariously liable for any deficiencies in the checking and approval of the plan when it was under Young's control. Thirdly, it was said that Bigridge was liable for the failures of Andrew Smith to properly inspect the balustrade, either as a direct responsibility of Bruce Thomas or else as vicariously responsible for the failure of Andrew Young to properly supervise the work of Smith. These issues need to be further analysed. Counsel for Bigridge contended that the third basis for claim was not pleaded against his client, is contrary to a statutory immunity which benefits both Young and Bigridge, and has no factual support, in any event.

781. A breach of statutory duty was also alleged against Bigridge. I have dealt with that earlier, and concluded that it is not established against either the second or the sixth defendant.

784. On behalf of Bigridge, counsel submitted that there was no error in Elevation 4, or else it was undetectable or so minor that it was unforeseeable that any person reading the plan could be led into the error which Scolaro said he made. On each of those points, as I have previously mentioned, I do not accept those contentions.

788. In his evidence, Bruce Thomas said that he was engaged on this project by Hudson Conway on 1 December 1993. He was already engaged on the Casino project and to ease his workload employed Andrew Young late in 1993. Young had worked with Thomas some years before, and he was appointed a director in February 1994. Soon after he joined Bigridge Young took over the file relating to the Balmoral project. For a time Thomas continued to have personal involvement in the file, but eventually it was conducted solely by Young. Thomas said that in about December 1993 he would have transferred the task of surveying work to Young but that he would have been "generically aware of the project" thereafter. The day-to-day handling of the file was with Young. I consider it likely that Young had assumed sole day to day control of the file by the end of December 1993, but on the evidence of the architect it is probable that as at that time earlier versions of Plan 18B would have already been delivered to Bruce Thomas' office. I am satisfied that whilst Thomas himself had personal responsibility for the file he would have had the opportunity to examine the forerunner of Plan 18B. The question arises whether those earlier versions of Plan 18B contained the misleading Elevation 4.

791. When shown Drawing 18B Thomas said that he was aware of the drawings when they first came in but he had not looked at the detail of 18B until this hearing. He had received a package of more than 20 drawings. As to the plan, and in particular the ambiguities created by Elevation 4, Thomas said that he could understand how a surveyor would approve it in good faith but looking carefully at it he did not understand how the architect could have drawn it the way he did. Thomas agreed that Elevation 4 could be read as indicating a height of 950 mm. He agreed that if the building surveyor had observed that, then he should not have approved it, but he said that the particular defect was rather obscure and a person knowing that the required height under the Code was a metre might reasonably interpret Elevation 4 as intending to stipulate a metre. He agreed, however, that it was ambiguous and that it should have been queried. Had the defect been picked up the plan should not have been approved. When it was suggested to him by Mr Stanley that D2.16 might permit approval of a plan although it stipulated a height of less than a metre Thomas disputed that contention and said that it would do away with the need for there to be a Buildings Appeal Board. He said that there had been occasions in the past where a balustrade built to less than a metre had been approved by the Board, but that was in cases after the work had already been performed, not in advance of the work commencing.

794. A letter signed by Thomas on 10 December 1993 suggests that Thomas was still involved in the project at that stage, when he wrote to the architect referring to "preliminary design drawings". In that letter, signed by Thomas, he set out any areas in which the drawings did not comply with the Code. I accept Young's evidence that this letter was primarily the work of Thomas and not of himself. This suggests clearly that Thomas up to this point had the opportunity to locate and highlight the error in Elevation 4 if it was then shown on the version of the Plan which he had.

797. Although Thomas thought that his day-to-day involvement on the project would have concluded in December 1993 he agreed that he kept an administrative role thereafter, and would have communicated with Young about the project from time to time. He agreed, at first, that it was probable that he had himself considered Plan 18B or its predecessors. But later in his evidence Thomas was referred to paragraph 6.10 in the letter written by him to the architect, dated 10 December 1993, in which he discussed the preliminary design drawings. In his response to the architect about compliance he wrote that handrail height above landing and balustrades basing, etc. needed to be specified. He said that that paragraph therefore demonstrated that the version of Plan 18 which he had at that time was not the same as Plan 18B, which did show those dimensions. I accept this evidence, which is consistent with the fact that the last version of 18B (which did have the problematic Elevation 4) is dated 22 December 1993. I conclude, however, that although Thomas did not himself have the opportunity to observe the defect in Elevation 4 his office had been alerted to the fact that the balustrade heights needed to be checked when the new plan arrived.

800. I conclude, therefore, that during the time that he was personally controlling the file Thomas did not see a plan which had Elevation 4 details on it. Accordingly, he did not personally fail to pick up the anomalies on the plan. He was alerted to the fact that the early versions of the plan made no reference, at all, to those dimensions, and he directed the architect's attention to that deficiency, but took no step to ensure that Young was careful in his later examination of the plans.

803. As I will discuss, the failure of Young to detect and have corrected the defects in Plan 18B was negligent conduct for which Bigridge is vicariously liable.

807. In addition to a claim against Bigridge based on failures with respect to the checking of Plan 18B, the plaintiff also contended that Bigridge was under a duty to conduct inspections of the work which was performed. That contention was disputed, but it was submitted that even if Bigridge had such a duty of care and even if it was negligent, either through Thomas, or vicariously through Young, then it gained the benefit of a statutory immunity from a claim for damages by virtue of the fact that in granting his occupancy permit Young relied on the certificate of inspection given by Smith.

810. The minor works order was signed between Bigridge and HCML on 1 December 1993. The minor works order required Bigridge to provide certification of documentation for compliance with the Code and regulations. Bigridge was to be paid a lump sum of $9,500 and additional daily work rates of $75.00 per hour. The new Building Act came into effect on 1 July 1994. On 7 July 1994, in recognition of the fact of the passage of the new legislation, a new agreement was signed between the parties in which Bigridge agreed to advise as to design documentation and for compliance with the Code and for the issuing of relevant permits. In addition, under the agreement Bigridge agreed to provide on-site inspections for the purpose of issuing a certificate of final inspection and occupancy permit. In fact the on-site inspections were conducted on Young's behalf by Andrew Smith, the building inspector.

813. The question whether the statutory immunity was available to Young and Bigridge turns on the issue whether Young was acting in good faith in relying on the certificate of final inspection provided by Smith. As I will show, in my opinion he did not act in good faith and could not gain the benefit of the immunity.

816. In the event that the statutory immunity did not apply then the question will be what was the nature of the duty of care, if any, which Bigridge had towards the plaintiff, with respect to inspections, and whether Young or Bigridge was negligent in the discharge of that duty.

819. The primary contention of counsel for Bigridge, was that the relevant legislation expressly provided for the nominated surveyor, Young, to delegate the task of inspecting to a building inspector such as Smith. Having done so, Young was entitled, when acting in good faith, to rely on the certificate of inspection which Smith provided. The legislation provided Young with a statutory immunity with respect to any faults arising out of acceptance of the certificate at face value. If that immunity applied to Young, then as his employer Bigridge, also, must have the benefit of that immunity. If that argument was correct then, arguably, it would not matter, so long as he acted in good faith, if Young had been negligent in relying on the certificate of Smith.

822. There is no doubt that a surveyor may delegate the task of inspection which falls due at the mandatory notification stage. So much is clear from s. 34 and s. 35 of the Building Act 1993. Also, the power to give directions (provided by s. 37(1)), which is granted to the surveyor, is recognised in the section to be one which may be performed through another person.

825. Section 238(1) provides that a surveyor in carrying out a function under the Act or Regulations may rely on a certificate by another registered building practitioner and s. 238(2) provides that that practitioner must not give a certificate in respect of building work "unless the certificate states that the Registered Building Practitioner has inspected that building work". Section 128 provides that a surveyor "is not liable for anything done or omitted to be done in good faith in reliance on a certificate given by a registered building practitioner under s. 238".

828. By s. 169 of the Act only a natural person could be a registered building practitioner, and in making application for registration the person must specify the category or class of registration sought. Accordingly, Bigridge could not be the surveyor for the project, and Young was nominated to hold that position.

831. Although Bigridge was compelled by the statute to nominate an individual building practitioner, and did so in nominating Young, and although Young was entitled to engage Smith to act as the inspector, the provisions of Part 4 of the Act (ss. 33-38) make it clear that the primary responsibility for inspection remains with the surveyor. Nonetheless, the surveyor is entitled to rely on the immunities of s. 128 providing the surveyor acted in good faith in doing so. The statutory immunity, however, applies only to the individual who is discharging functions under the Act as surveyor. It is not expressed as applying to the corporate surveyor.

834. The corporate surveyor, and more particularly, Bruce Thomas, are relevant to the question of good faith because not only was it the corporate surveyor which engaged Smith, the presumed belief and attitude of Thomas as to Smith's competence are said by Young to have been of significance in shaping his own attitude towards Smith.

(D) WAS A VALID FORM 14, CERTIFICATE OF COMPLIANCE, EVER ISSUED?

838. Before dealing with the evidence of Young and Thomas on the question of good faith I will address a preliminary issue raised by Mr Casey. He submitted that there was no basis for reliance on the immunity under s. 128, in any event, because a valid certificate under s. 238 was never issued. His contentions were twofold.

841. First, he submitted that what purported to be a certificate issued under s. 238 was invalid because by the words of sub-s. 2 of s. 238, Smith could not give such a certificate "unless the certificate states that the registered building practitioner has inspected that building work". Although the Form 14 purported to record that Smith had conducted inspections of the whole of Block 3 he swore in his answers to interrogatories that he had made no inspection, in fact, of the balustrades. (His evidence before me was less emphatic, but led to the same conclusion. Certainly, he did not measure the balustrade, and despite his assertions that he could judge the height of a balustrade by standing nearby and using a point on his own body as a reference point, he did not seem to state confidently that he did that test either.)

844. Secondly, Regulation 15.7(2) provided that a certificate under s. 238 must be in accordance with Form 14 in relation to the inspection of building work and that form required a description of the building work inspected and a description of that part of the Act, Regulations or Code complied with. In fact the Form 14, "Certificate of Compliance" which was signed by Smith on 17 July 1995 read as follows:

"I certify that the part of the building work described as Block 3, 188 Riversdale Road, Hawthorn complies with the following provisions of the Regulations* also see certificates." *Includes BCA and relevant standards.

848. The certificate, so it was submitted, did not comply with the required form because it did not state which were "the following provisions of the regulations (includes BCA and relevant standards)". Apart from the words in italics the totality of the words, above, were included in the pro-forma printed form. The words in italics, including "also see certificates", were handwritten by Smith. Accompanying the Form 14 were many handwritten pages of dates of site visits with very cryptic notes as to what occurred, often with nothing more substantial than a single word, eg. "foundations", or the note "site visit". On 1 February 1995, as an example, it recorded "Block 3, 1st/floor approved".

851. As to these two preliminary arguments, I conclude, first, that even if Smith had not made the examination which the certificate purported that he had made it would still be a certificate on which the surveyor could rely. The second argument has more merit. It does not seem to me that the certificate which was granted was "in accordance" with Form 14, which is set out in Schedule 2 of the Regulations.

854. Whilst many expert witnesses said that it was common (but not universal) practice for the Form 14 to be filled out in such a manner as did Smith, in my opinion it is contrary to the requirement of Regulation 15.7(2) for neither the regulations nor the Code provisions to be stated, at all, in the certificate. Given that it is contended on behalf of the surveyors that the scheme of the legislation provided a complete indemnity if they acted on a certificate it seems to me to be logical that as to "the part of the building work" which has been inspected the draftspersons intended that the inspector should specify what sections of the Act, regulations or Code applied. That does not mean that provisions might not be grouped together, perhaps under Divisions of the Act, but in the case of an inspection of balustrades the one relevant Code provision needed to be mentioned. Indeed, although Smith made the one certificate apply to the whole of Block 3 it may be thought that the form itself was predicated on the assumption that greater particularity of the work within the building which was being certified was to be identified, so that separate forms would be given to that effect (and the form would therefore have allowed enough space for the relatively few provisions which would then need to be inserted on each form). The requirement of particularity does not seem to me impose a major burden on the person completing the certificate.

857. Given, further, that the surveyor is meant to be an expert as to the legislative provisions (and is much more highly qualified than an inspector) it would be perfectly reasonable that the inspector's opinion of the relevant provisions should be specified so that they might be checked by the surveyor before acting on the certificate. After all, what service is it for which the surveyor charges his fee - a much larger fee than that of the inspector? The fee charged is for the performance of a duty which under the legislation remains the surveyor's own obligation, notwithstanding that the mechanical task of inspection may be delegated.

860. I conclude that the certificate presented by Smith did not comply with the regulations, and on that basis alone the immunity provisions would not apply. However, be I wrong as to that, the very fact that the form was completed in the minimalist manner in which it was would be an important factor in the question whether there was good faith accompanying the reliance on it.

863. I turn then to the evidence relevant to the good faith argument.

867. Andrew Smith was engaged as building inspector by Bigridge on 19 August 1994. Thomas said he had known him from the time when they had worked together at Melbourne City Council and he always impressed Thomas as being a very reliable and professional building inspector. Thomas said that when he was the surveyor at South Melbourne City Council he had recruited Smith "to head the inspection team". (Given that there was only one other person below Smith the "team" was rather more modest than Thomas sought to imply.) He regarded Smith's work at South Melbourne Council as very good and considered he was ideally suited for the position which he offered him, as building inspector at South Melbourne. He said he had engaged Smith in private practice on half a dozen occasions before he offered him this job. His work was very good and he had no misgivings about his reputation for competence.

870. As to the work of Smith, Thomas said that he assumed that because Smith was an inspector he would do his job appropriately but he did not check to see whether that was the case. He expected Smith to feed back to Bigridge any misgivings he had about the job. When asked to whom Smith reported Thomas was unsure, but thought it would be to Young; Thomas did not think he, himself, had any role towards Smith. He agreed that Hudson Conway had no agreement with Smith and that Hudson Conway could not direct Smith as to how he did his job. When asked how he ensured that Smith did his job appropriately, he said: "It was a matter of good faith and trust under our contract". He said that he had no reason not to rely, in good faith, on Smith's certificates. Thomas said that the building industry was as varied as were the people who worked in it, it being an industry that "transcends a lot of different personalities and levels of academic qualifications and so on". It must have been very apparent to Thomas, when he offered the job to Smith, that Smith, himself, was a person with an unusual personality.

873. On a previous job, when Smith was inspecting a Hudson Conway project, Thomas had admonished Smith, for having taken his concerns about some aspects of a job directly to Hudson Conway personnel. Thomas was very annoyed that he had done so, and their relationship was strained by that event. He directed Smith that he was to produce "no more surprises" like that, and he was to bring any concern first to Thomas, before going to the client. It was a feature of Thomas' evidence that he was acutely sensitive, and appreciative, as to his relationship with Hudson Conway. His relationship was very much that of the "can do" entrepreneur, and in my opinion he would have been very slow to give offence to such a valued client. Given what I observed as to Smith's personality, and his deference to Thomas whom he perceived to be a wiser person than himself, I can well imagine that - as Smith said was the way he did take it - Smith might have taken his admonition as confirmation that he was not to cause trouble on the job. He said that his reputation when working at the Council offices with Thomas, was that he was a person who did not cause trouble for companies whose projects he inspected, and he said that Thomas very much supported that approach. Smith said that when he was offered the Balmoral job (having been out of work for a considerable time, following privatisation of the inspectors' jobs) Thomas told him that he was to act just like a council inspector, and Smith understood that to mean that he was to adopt the supportive role towards projects that Thomas had encouraged him to adopt when they worked together in the past.

876. Thomas agreed that since Smith had not, in fact, conducted an inspection of the balustrade he should not have issued his Form 14. But Thomas took no role in overseeing Smith's performance of his duties. If it was Smith's practice not to actually measure handrails then Thomas had been unaware of it.

879. It is Young whose good faith in relying on the certificate of Smith is the focus of attention for the statutory immunity. Prior to this job he had no knowledge of Smith, at all. Young considered that he had no obligation to himself attend the site for purposes connected with the statutory inspections. Indeed, he rarely attended the site, at all. He said there was "no requirement" that the surveyor attend. He said the practice at that time was for the surveyor to engage an inspector and to rely totally, and solely, on his inspections. There was "no obligation" to attend site meetings either; when he did, it was only as a public relations exercise. In all, he would have attended the work site less than half a dozen times. Young said he had no reason to doubt Smith's competence, but nor did he have any reason to know that he was doing the job competently. Young did not know EFT at the time. He thought that it would have been mandatory for Smith to have measured the balustrade. Young rarely spoke to Smith about the job and probably never saw him on the job. He did not read site meeting minutes as a matter of course, or possibly at all. In accepting the two Form 14 certificates which Smith issued he said he had "no obligation" other than to collate them.

882. It was the usual practice at that time, following passage of the new legislation, to engage outside inspectors. It is obvious why that was so. As Young saw it, all responsibility rested with the inspector. Indeed, it was plain from his evidence that it was a deliberate decision not to oversee what was happening lest that interfere with or complicate the total immunity given by the Act. He said that if Smith had any problems he could have taken those up with Bruce Thomas and Associates, but they (i.e. Thomas) would have agreed with Young that the Form 14 "was his responsibility and his responsibility alone". Young said it was alarming if Smith, as he swore, did not know what was required of the Form 14, because forms are an enormous basis for his job. (In fact, the new form, introduced by the 1994 regulations, were not very familiar to Smith, and I believe him when he said that he sought advice from Thomas as to how he should complete the form, i.e. in what detail.)

885. When asked about the lack of specificity in the Form 14, and in the accompanying sheets, Young said he would have accepted it on its face. He said the attached pages would have listed the inspection dates "and perhaps whether it was a foundation frame or what other component", but as to precisely what the Form 14 related to, he said that "could be construed to be irrelevant to a point". I think it probable that Young did not bother to check the documentation which Smith provided with the Form 14 for Block 3 and it is doubtful that he gave more than glancing attention to the Form 14 itself.

888. As to his role in granting a building permit, Young conceded that there were ambiguities in Plan 18B, but he said that even when safety was concerned it would not necessarily be the job of the surveyor to clarify the issue. He would not have needed to refer 18B back to the architect. In his opinion, the benchmark of 1000mm was clear. Asked if he should have followed up the question of the ambiguities with Smith he said, "Not necessarily. I am not too sure on the question". Should he have checked that Smith was not misled by the ambiguities? He said "Not necessarily". If Smith had a problem with the ambiguities then, Young said, he should have raised it "with any party". He said Smith would have known that the benchmark prevailed over the ambiguous height shown on the plan, but he did not check to see if that was so. He would have presumed (had he turned his mind to it, at all) that because he was an inspector Smith would know the Code. When asked whether that was a sound basis for his assumption that Smith would not be misled he replied: "Well, I didn't rely solely on that. It is Bruce Thomas that relied on his prior knowledge to the project" (sic).

891. The situation was that Smith had completed a Form 14 (after seeking advice as to how he should do so) in terms which were so sparse as to provide no information at all. He was unknown to Young personally. If Smith held the absurd belief that the inspector did not need to measure a balustrade, Young did not ask a single question to establish that fact. The surveyors knew that Smith was being paid an absurdly low monthly fee, from which he had to pay all expenses. A reading of the list of site inspections would have demonstrated that he could not have been earning more than about $10 per visit, in some months when he made multiple site visits. There was every reason to fear that he might cut corners in those circumstances.

894. In my opinion, Young adopted an entirely "hands off" approach towards his own and Bigridge's statutory and contractual obligations to inspect the project. It can not be acting in good faith to do nothing at all, in these circumstances, so as to check that the inspections were being properly conducted. Smith was inspecting for safety issues. Bigridge was being well paid for inspections under its contract and its income from its fees for inspection was not greatly reduced by virtue of its payment of the modest fees charged by the man who was doing all the work.

897. In my opinion, blind disinterest is not good faith and the s. 128 statutory immunity is not available to Young, nor, therefore, can Bigridge gain any indirect protection as to its vicarious liability for any negligence of Young.

(F) THE NEGLIGENCE ALLEGED AGAINST THE CORPORATE SURVEYOR, BIGRIDGE:

901. There being no statutory immunity for negligence, were Young and Bigridge negligent in the discharge of their duty of care towards the plaintiff? I return to the content of the duty of care.

904. Among the allegations pleaded by the plaintiff against Bigridge under paragraph 20 of the statement of claim were: -

(f) failing to carry out any or any proper inspections of the balustrade, its height and configuration, either when it was under construction or completed;

(g) failing to check the height of the balustrade after it was constructed against the height specified in the plans;

(h) failing to check the height of the balustrade after it was constructed against the height specified in the Code;

(l) failing to ensure that the balustrade, by reason of its height and/or configuration adequately restricted persons accidentally falling from the floor;

(o) failing to ensure that the third defendant had provided proper and adequate certificates as required by Regulation 15.5 of the Building Regulations 1994 (the Form 14 certificates);

(p) issuing the Certificate of Occupancy in circumstances where the third defendant had not provided proper and adequate certificates as required in the Form 14 certificates.

910. In submissions made by counsel for the plaintiff they claimed that Bigridge was liable for the negligence of Smith in the conduct of his inspection of the balustrade (or his failure to inspect it) because it owed a non-delegable duty of care to the plaintiff. Counsel for Bigridge conceded that it owed a duty to take care in inspecting the plans but did not concede that a broader duty of care existed with respect to inspections of the balustrade. Insofar as there was such a duty (which it denied) then it contended that it was delegable, and Bigridge had discharged that duty by the employment of a competent independent contractor, Smith. The duty was then owed by Smith, not Bigridge. Alternatively, even if the duty of care was non-delegable then Bigridge contended that it would discharge the duty, once again, by the engagement of Smith, an apparently competent professional inspector, that constituting the exercise of reasonable care on its part.

913. Generally speaking, a duty of care may be discharged by exercising reasonable care in entrusting the performance of the work to a competent third party, i.e. an independent contractor[12]. If there was a non-delegable duty for on-site inspections then Bigridge would have an additional, more stringent, responsibility to go further than to merely hand the task over to the contractor, and would be obliged to take steps to ensure that the contractor exercised reasonable care[13].

916. Bigridge contended that if it did have a non-delegable duty it had discharged that duty, too. It was neither obliged to supervise Smith, nor to conduct its own inspections (through Young or Thomas) of that which Smith had purported to inspect.

(G) WAS THERE A BREACH OF THE SURVEYOR'S DUTY OF CARE

920. In submissions made on behalf of the tenth defendant, Mr Curtain QC submitted that Bigridge could not rely on its appointment of Smith because it knew or ought to have known that he was not competent to conduct the inspections. Mr Gillies submitted that this allegation was not one raised in the pleadings, and the evidence of Thomas that he believed Smith to be competent had never been challenged in cross-examination, nor controverted by other evidence of expert witnesses as to Smith's competence. I agree that this was not a matter which was pleaded as a breach of duty of care, and whilst (as I have just discussed with respect to the good faith argument) the question of Thomas' knowledge of Smith's personality and approach to his duties may be relevant for other purposes, I do not accept that Smith's alleged known incompetence was an issue which was the subject of a pleaded claim. In any event, I agree with Mr Gillies that there was no evidence challenging Thomas' assertion that he believed Smith to be competent for the job and he was not directly questioned as to that. That is not to say that I believe that Smith was in fact competent to be given the job or that it was reasonable for Thomas to have held the belief as to his competence which he proclaims he held, or to have taken no steps to ascertain whether there were any deficiencies in Smith's appreciation of what his statutory duties entailed. It simply means that a specific claim of negligence based on this allegation had not been pleaded and will not form the basis of an adverse finding of negligence on such a ground.

923. Assuming that breach of duty of care is not open to be established by virtue of any unreasonableness in the decision to appoint Smith or by virtue of the contention that he was incompetent for the job, at the outset, but that the pleaded allegations of breach of duty relate to the negligent manner in which he performed his job, what then was the obligation, if any, on Young and Bigridge to oversee Smith's performance, or to conduct their own inspections? Was the duty of care delegable or not?

(H) THE SURVEYOR'S DUTY OF CARE - WAS IT DELEGABLE?

927. In the first place, it is to be observed that the contractual obligation of Bigridge to HCML included the requirement to inspect. Bigridge was engaged by the combined effect of the Minor Works Order dated 1 December 1993 and the letter from Bruce Thomas & Associates to HCML dated 7 July 1994. The letter under, "4. Scope of Work", required the performance of:

"(iii) On-site inspections and any other inspections deemed relevant during the course of the 10 month contract period for the purpose of issuing Certificate of Final Inspection or Occupancy Permit in accordance with the Building Regulations 1994."

Under "6. General Conditions of Agreement " the letter provided:

"(b) Bruce Thomas & Associates shall exercise reasonable skill and care and diligence in performing the work and providing the services the subject of the Agreement as required by Sections 76 and 77 of the Building Act 1993. "

933. The functions listed under s.76 were, relevantly, the issuing of building permits, the carrying out of inspections of buildings and building work under Part 4 and the issuing of occupancy permits under part 5.

936. In determining whether a duty of care exists, the primary requirement is analysis of any legislation and of the respective positions occupied by parties to the events[14]. The statutory duty cast on the relevant surveyor by ss. 34, 35, 37 and ss. 41-48 was an important one, concerned with public safety. The combination of the statutory duty of inspection, imposed on Young (the employee of Bigridge) the contractual duty, and the potential for serious danger to that class of the public which would be at risk by using the building with an unsafe balustrade, coupled with the fact that the surveyor was under a statutory or contractual and common law duty to identify any errors and anomalies which made the plans non-compliant all suggest to me that there was, indeed, a duty owed to the plaintiff by Bigridge either to inspect the balustrade or else to ensure that it was properly inspected. The risk of a member of the public being injured by falling over a balustrade, the deficiencies of which have not been identified by an inspection, was reasonably foreseeable, in my view. The finding that there is such a duty of care seems to me to accord with well recognised principles, and insofar as proximity remains a requirement for establishing a duty of care, it clearly exists as between the surveyors and the plaintiff, although there is not a direct relationship by virtue of contract between them[15]. In particular, although this is not a case concerning a statutory authority or municipality, the aspects of control over builders which the surveyor possessed (the relevant surveyor being the employee of Bigridge) and could apply so as to ensure that an unsafe balustrade would not be granted an occupancy permit, and the positive duty imposed by the Act on the surveyor to conduct inspections, are part of a scheme not dissimilar to that under discussion by the High Court in Pyrenees Shire Council v Day[16].

939. Given that there was a duty of care to inspect, was it delegable, and was the duty owed to the plaintiff one which would require, further, that the surveyor (Young, as servant of Bigridge) oversaw the activities of the inspector?

942. Mr Gillies submitted that the scheme of the legislation made it plain that it was a delegable duty and any duty owed by Bigridge either directly or through Young was delegated to the building inspector, Smith. However, as I noted earlier (when discussing lack of good faith) it is not the duty to inspect, merely the act of inspection, which the surveyor is permitted to delegate. It is the surveyor who holds the statutory obligation under s. 34 to cause an inspection of building work at a mandatory notification stage (defined by regulation 7.1) and by ss. 41-48 it is the surveyor who carries the duty with respect to the issuing of an occupancy permit. Thus, in my opinion, nothing in the Act demonstrates that the duty of care was delegable; in fact, it shows the opposite. An immunity was given against claims, in certain circumstances, but that was despite the fact that the duty remained with the surveyor. As I have earlier noted, the immunity does not take effect in the present case.

945. In Burnie Port Authority v General Jones Pty Ltd[17] it was held in the joint judgment that:

"It has long been recognized that there are certain categories of case in which a duty to take reasonable care to avoid a foreseeable risk of injury to another will not be discharged merely by the employment of a qualified and ostensibly competent independent contractor. In those categories of case, the nature of the relationship of proximity gives rise to a duty of care of a special and `more stringent' kind, namely a `duty to ensure that reasonable care is taken'. Put differently, the requirement of reasonable care in those categories of case extends to seeing that care is taken. One of the classic statements of the scope of such a duty of care remains that of Lord Blackburn in Hughes v. Percival: `that duty went so far as to require [the defendant] to see that reasonable skill and care were exercised in those operations... If such a duty was cast upon the defendant he could not get rid of responsibility by delegating the performance of it to a third person. He was at liberty to employ such a third person to fulfil the duty which the law cast on himself... but the defendant still remained subject to that duty, and liable for the consequences if it was not fulfilled.' In Kondis v. State Transport Authority, in a judgment with which Deane J. and Dawson J. agreed, Mason J. identified some of the principal categories of case in which the duty to take reasonable care under the ordinary law of negligence is non-delegable in that sense: adjoining owners of land in relation to work threatening support or common walls; master and servant in relation to a safe system of work; hospital and patient; school authority and pupil; and (arguably), occupier and invitee. In most, though conceivably not all, of such categories of case, the common `element in the relationship between the parties which generates [the] special responsibility or duty to see that care is taken' is that `the person on whom [the duty] is imposed has undertaken the care, supervision or control of the person or property as to assume or is so placed in relation to that person or his property as to assume a particular responsibility for his or its safety, in circumstances where the person affected might reasonably expect that due care will be exercised'. It will be convenient to refer to that common element as `the central element of control'. Viewed from the perspective of the person to whom the duty is owed, the relationship of proximity giving rise to the non-delegable duty of care in such cases is marked by special dependence or vulnerability on the part of that person."

949. In my opinion, having regard to my analysis of the legislative and contractual framework, above, this was an instance of a non-delegable duty of care even though the actual inspection could be delegated. The surveyor Bigridge (through Young) was in a position to control whether the balustrade would be approved; Young had a statutory obligation to cause the work to be inspected and to direct that the work be brought into compliance with the Code; the duty of care on the surveyor was added to, or supported, by the standards imposed by Reg 15.2 requiring that his work be performed to a professional standard; and the plaintiff was in a position of vulnerability because the danger of the rail would not be obvious. That there was a duty of care on Young can not be doubted and I consider that duty of care was not discharged by merely employing Smith as an apparently competent contractor to perform the inspections. Whether the duty of care imposed on Young (and, in turn, upon Bigridge) should be characterised as a duty to conduct his own inspection or as a duty to ensure that reasonable care and skill was being exercised by the person whom he had engaged to perform the task of inspection matters little, in my opinion. Either way Young had a duty of care on him to ensure either by personal inspection or by taking steps to ensure that reasonable care and skill was being applied by the inspector. No steps were taken by Young to ensure that Smith was exercising such care.

952. In my opinion, the duty imposed on Young was equally imposed on Bigridge, even if the specific statutory obligations were imposed on Young. Young, at all times, was acting for Bigridge in the performance of its contractual obligations and as its agent in discharging its own duty of care.

955. Mr Gillies submitted that the surveyor had discharged his duty of care because the reliance on the certificate of the inspector, and leaving the task of inspection to the inspector, was standard practice in the industry at this time. He referred to the evidence of Lorich, Lorenzini, Thomas, Young, Neale and Smith. Lorich said that quite often, at that time, the surveyor did not even go to the building site. The effect of that evidence was significantly qualified, in my view, and appropriately so, by the evidence of Neale and Lorenzini, the two expert surveyor witnesses who were both also qualified as inspectors. There was a significant qualification made by Lorich, himself, he being a building consultant.

958. Neale, who was called in support of the case for Young, said that had he noticed the anomalies on Plan 18B but nonetheless have decided to grant a building permit he would have regarded it as prudent to have drawn the anomalies to the attention of the building inspector, but having done so he would not himself then measure the balustrades. He said that he could not presume with absolute certainty that all persons who read the plan would appreciate that the anomalies of Elevation 4 should be ignored in favour of a height of 1000 mm shown on the Detail. Even where the inspector could be presumed to be an expert, Neale agreed he would want to be assured that there was no risk that the inspector, by his reading of the Plan, would allow the balustrade to be built below 1000 mm. He said that if the plan made it clear to the inspector that the anomalies had been picked up and if the plan was clarified to show that it imposed a 1000 mm requirement then the surveyor might not need to have brought the anomalies to the attention of the inspector. He said that he would himself bring the anomalies to the attention of the architect, who might amend the plans, thus obviating the need to speak to the inspector. Alternatively, the surveyor might follow the traditional practice (especially for a safety item such as this) of marking in red on the plan a correction or clarification. He agreed, too, that in a large scale project it may be wise for the surveyor and the inspector to have a look over the site together before the occupancy permit was granted. His own practice would be that when receiving a Form 14 he would want to clearly ascertain what was being certified. If he had earlier identified anomalies on a plan relating to a safety feature it was fair comment to say it would be prudent to follow up as to the Form 14 to see that there was not a problem. He agreed that it may be particularly appropriate to follow up with the inspector when he didn't himself know the inspector.

961. Lorenzini said that a surveyor, at the time, could rely entirely on a Form 14. That has now changed. Section 238 was repealed by the Building (Amendment) Act No 18 of 1998, so that regulation 15.7 now provides a right to rely on the certificate only in the case of domestic buildings, not commercial developments. The change suggests a recognition of the inappropriateness of a surveyor being able to absolve himself from responsibility by virtue of placing reliance on an inspector's certificate. Lorenzini confirmed that. He said that the change was the product of the Building Control Commission responding to concerns in the industry that by relying solely on inspectors and then on the statutory immunity they were not accepting any role in the inspection process. However, even at the time of this project, if the surveyor discovered the anomalies in a plan which made it non-compliant then he would contact the architect and ask him to re-draw the plan, so that the builder knew what was required of him.

964. It was the surveyor's job to see every error on the plan, Lorenzini said. He would have expected there to be discussions between the surveyor, Young, and Smith during the course of the project, and he agreed that may involve Young attending at the site to look at problems or issues that arise. As to whether it would have been good practice for the surveyor to accompany the inspector on the final building inspection, he thought not , but added "I think it really depends on the experience of the building inspector. I mean, the building inspector, an experienced building inspector would know what to look for and would not need to have somebody else holding his hand to do that inspection." Lorenzini said surveyors in his own office would not accompany the inspector on his inspection but "if we had a job of that size we would satisfy ourselves that the building inspector was qualified and experienced enough to do the inspection and then rely on him and rely on his Form 14". He agreed that the inspector was entitled to assume that the surveyor, having approved the plans, had considered the details before doing so, but a conservative inspector noticing the 950 mm measurement would have queried that. He agreed that this plan had ambiguities in it, which the surveyor should have detected.

967. Lorenzini said that if the inspector saw a detail measuring 950 mm on the plan, alarm bells should have rung, and he should have contacted the surveyor to see if there was approval from the Building Appeals Board for that height, because "ultimately, the building surveyor's the authority in the whole thing", and had full authority to ensure compliance with the Code: "that's his role in the overall project ... to make sure it complies". It would not be expected in the industry that the surveyor would himself take part in the inspections, but that would depend on the experience of the building inspector. An experienced inspector, as Smith was said to be, should not need to have his hand held.

970. Lorick said that he had many times seen plans altered or noted in red by surveyors when they had found they did not comply with the Code. He said that he believed that the surveyor should have picked up the anomalies on the plan. Mr Gillies objected to Lorich giving what he said was a legal opinion as to his belief whether the inspection by the inspector relieved the surveyor from any obligation to conduct his own inspections. Lorich said that his opinion of industry practice was that it was the building surveyor who carried the responsibility for responding to a defect on site. That opinion, which he said reflects his view of industry practice, certainly accords with my own opinion, as a matter of law, and as stated above, as to where legal responsibility for inspection actually lies, namely, with the surveyor.

973. In my view, when one puts to one side the statutory immunity (since it does not apply) there was a breach of the duty imposed on Bigridge with respect to on-site activities. It was obliged to check that reasonable care and skill was being employed by Smith. It needed to so check because Young knew nothing about Smith and his work practices, save for his belief as to Thomas's experience with him (he did not make it clear whether he knew at the time what past experience there had been, rather than subsequently finding out, but I will assume it was the former position); Young never suggested that Thomas had given him any actual briefing, at all, or in any detail, as to the basis for any opinion he held. It seems probable that Young merely assumed, by virtue of Smith's appointment and by his knowledge that they had worked together before, that Thomas must have held Smith in good regard; he did not, himself, bother to speak to Smith before he commenced work to see what his understanding of his job was; he should have known that there were ambiguities in the plan which required clarification with Smith; he rarely attended the site, and only for public relations reasons. No step was taken by Young to discharge the non-delegable duty to check the work being done by Smith or even the approach which he was adopting to performing his work, and thus there was no awareness that he was not measuring the balustrades. Young, and vicariously Bigridge, were in breach of their duty of care to the plaintiff with respect to their on-site obligations.

977. It is unnecessary for me to repeat the discussion of Young's role which I have just concluded with respect to Bigridge. Young, himself, had little memory of what he did on this project, and whether he observed the ambiguities in Plan 18B. The opinion of experts Lorich and Lorenzini, as discussed, was ultimately, that Young should have picked up the defects on the plan, and that those defects made the plan non-compliant. An occupancy permit should not, therefore, have been granted. Lorenzini said that Young should have caused the plan to be amended. Such a request for re-drawing by an architect was a very common requirement by a surveyor, Lorenzini said. He would do so in order that the builder knew what he was to build, because in the present case the builder would not have known from the plans whether he was to build the balustrade to 1000 mm or 950 mm. Young, himself, conceded that there were ambiguities in Plan 18B.

980. Furthermore, Young had a continuing role and duty with respect to on-site inspection, which was not discharged merely by the appointment of Smith. He failed to discharge that duty, too.

983. Thomas, himself, said it was only in isolation that Elevation 4 was ambiguous, but he agreed that it should have been picked up by the surveyor and he should not have signed off on the plans. He agreed, too, that the drawing of the Detail did not comply with the Code because it showed the measurements taken from the concrete.

986. The surveyor has full authority to ensure compliance with the Code.

989. Both Thomas and Young (and later Neale, who was called as an expert on behalf of Young) suggested that the errors and ambiguities contained in plan 18B were of such small detail that it would not be unreasonable that the surveyor may have overlooked them. It was suggested that most plans contain some small ambiguities or errors, but in my view (and that of Lorenzini, among others) it is beyond argument that a surveyor charged with statutory and contractual responsibility for examining plans for compliance, and being well paid to do so, is being called on to apply an expertise which condescends to examine the minutiae of plans, so as to detect error, and ambiguity which might reasonably produce error by those who will subsequently rely on those plans. That skill and attention was not brought to the job by Young when he examined Plan 18B. Mr Settle, counsel for the architect, submitted that this last fact should have absolved the architect from responsibility, but as I have earlier noted the very fact of the ambiguities within the plan created the risk that a reader of the plan would be misled. But the builder, in turn, would not seek to pass all responsibility to the architect.

992. For reasons which I have previously discussed, I am satisfied that Young was negligent in his role as surveyor and that his errors were a cause of the injury suffered by the plaintiff.

996. The builder, Scolaros Concrete Constructions Pty Ltd, was obliged both by clause 14.1 of its contract with Davidson Hughes, and by s.16 of the Building Act to ensure that the work done by it (or its sub-contractors) complied with the Code. The contract provided that it was to engage competent sub-contractors and to supervise them. The contract specified that drawings to larger scale were to take precedence over those to smaller scale, hence Elevation 4 should not have been given priority over the Detail in Plan 18B.

999. Lorenzini said that the ambiguities and inconsistencies shown in plan 18B should have alerted the builder of the need to check what was the correct height at which the balustrades were to be built.

1002. Lorenzini said that the Detail on Plan 18B applied to all of the units on the plan and not just to the external entry to units 7-11, as Scolaro said he understood the plan to be indicating. No one else (apart from Smith) accepted that that was a reasonable presumption for Scolaro to have made, although it is to be observed that the Detail referred to the floor coverings as being tiles, when it was only for the external balustrade that tiles had been proposed. The draftsperson of Plan 18B did not make it clear beyond doubt that the Detail applied both to internal and external balustrades, whether the floor surfaces were to be tiled or carpeted.

1005. Lorenzini said that notwithstanding Elevation 4 the builder should still have concluded that the balustrades were to be built to a height of 1000 mm. He should, at least, have queried the drawing with the architect or the surveyor if he had any doubt as to that.

1008. Faced with a plan which had the height of 1000 mm shown on the larger scale Detail (and elsewhere on the plan) Scolaro chose to follow a smaller detail which also showed a dimension of 1000 mm but which could possibly be read as indicating that was the height of the top of the post, whereas the rail was to be at 950 mm. The builder should have requested further information from the architect to clear up the inconsistency, according to Lorenzini, and in order to do so he would send what was known as an RFI, i.e., a request for information form. Once the inconsistency was pointed out in this way by the builder then the architect should notify the surveyor of it, and would respond to the expected request of the surveyor that the plan be changed to correct the inconsistency.

1011. The builder had ample opportunity to raise any uncertainty or ambiguity in the plans, and could do so in a site meeting, if necessary. In this case the builder saw no problem in the plans. It was only after the work had been substantially done on the balustrades that he said he learned that the Code stipulated a rail of at least 1000 mm, rather than 900 mm. I have accepted that he subsequently told the HCML site manager of the project, Mr James, of the deficiency in the rail and suggested a possible solution, which was rejected, but that does not remove his own responsibility for the creation of the dangerous situation which the balustrade posed.

1014. The project at Balmoral Apartments was far larger than any on which Mr Scolaro had previously been engaged. He had limited prior experience as a builder, and that had involved relatively few, and much smaller, projects. His primary activity was as a concreter. He came to the project late in life and I have no doubt that he was thrilled to be offered such a prestige job by a company of the industry status of Hudson Conway. From the outset the project had difficulties and was quickly running substantially behind time. The quality of much of the work by sub-contractors was described by his foreman carpenter, Cavezan, as being atrocious, and by the HCML inspector, Noonan, as being sub-standard, and there are proceedings yet to be heard in VCAT between the body corporate and Davidson Hughes which will canvass that question. Mr Scolaro was, I believe, a decent and honourable man, who is distressed that what he hoped would be a project marking the high point of his building career, is now suggested to be sub-standard and as being a cause of the devastating injury suffered by the plaintiff. I am sure that the trial was very stressful for him. He sought to defend his honour as best he could, but always, I am satisfied, with a genuine belief in the truth of what he said in evidence, even if I have rejected some of it as being inaccurate.

1017. There can be no doubt that as builder, the first defendant, owed a duty of care to the plaintiff[18]. There can equally be no doubt, in my view, that in building, through EFT, a balustrade at a height which did not comply with the Code the first defendant was negligent, and that the deficiency in the height of the rail was, as I earlier discussed, a cause of the plaintiff's injury.

1021. There was a good deal of reconstruction and self justification evident in the evidence of the inspector, Mr Andrew Smith. That makes it difficult, at times, to assess what he actually thought and did at the relevant time.

1024. Andrew Smith, had been licensed as a building inspector before the privatisation of the inspector's role occurred in 1994. He gained a certificate from Swinburne Institute of Technology in 1981, after a course of eight months study. He then worked as an employee for several municipal Councils in that role, the longest period of employment being with Melbourne City Council from 1980 to 1987. He first met Thomas at that time, but did not work with him. He was recruited by Thomas to move to South Melbourne City Council where he became senior building inspector, but there was only one inspector below him. Thomas, as the senior surveyor, was "the boss". Smith regarded surveyors as being much superior in training and knowledge to mere inspectors, whom he regarded as being "underlings". Although Thomas made much of his experience with Smith and of his belief as to his competence by virtue of this period, Smith only worked with Thomas for some two months, and would not be on the job site with him. He would report back to Thomas only when he was issuing a certificate of non-compliance.

1027. With privatisation, Smith found his services no longer required by municipal councils and, apart from some very limited exceptions, was out of work and living on the dole in 1993. Bruce Thomas contacted Smith and offered to engage Smith as building inspector for the Crown Casino project. This approach was in November 1993, but Smith was told that he could not start until the new legislation came into effect, which was 1 July 1994. Thomas told Smith that he wanted him to work as "a typical council building inspector". I am confident that Thomas must have regarded Smith to be a person whose approach to his job as a council employee was that of a facilitator, not an inhibiter of building projects. I draw that conclusion making due allowance for the fact that Thomas, who gave evidence before Smith, was not cross examined about that aspect of Smith's self assessment.

1030. Smith was thrilled and relieved to be offered this position. He purchased letterhead in the name of a firm Andrew Smith and Associates (he being the sole member and the business name never being registered) and prepared to start work. After performing some small jobs at the casino site Thomas directed him to perform the work of inspector at Balmoral Apartments.

1033. The letter of appointment from Bruce Thomas & Associates, dated 19 August 1994, specified that he was to undertake building inspections comprising "all relevant and mandatory inspections as depicted on all building permit stages for the above property". The contract letter specified that Smith was to provide information regarding "records of mandatory inspections in accordance with Part 7 of the Building Regulations 1994 together with a certificate as to the satisfactory completion of building work pursuant to s. 238 of the Building Act 1993 and Regulation 15.5 of the Building Regulations 1994 (Form 14)". The contract further specified that the information was required for the purpose of issuing an occupancy permit pursuant to s. 21 of the Act.

1036. The terms of engagement provided for payment of a mere $200 per month to Smith, however many times he had to conduct inspections at the site. So many attendances were required that he estimated that he was earning in the order of $10 gross per visit, without any of the benefits of superannuation or other benefits that he had held as a Council employee. But he was hopeful that his engagement would lead to further opportunities.

1039. Smith had performed inspections on quite large buildings throughout his career with councils, and I do not conclude that this job was bigger than any he had previously been assigned, but the relationship between surveyor and inspector was significantly different to his previous experience.

1042. Under the old statutory regime, the inspector was subject to direction and supervision by the surveyors. The inspector had far fewer and less extensive tertiary qualifications and training than a surveyor, a situation which did not change with privatisation. Privatisation did not enhance his status, nor his income, but the new legislation did render the inspector particularly vulnerable because the surveyor, in turn, was granted the statutory immunity which I have earlier discussed.

1045. Smith did complete and sign a Form 14 as to his inspection of Block 3. He said that the form was not one he was familiar with and he collected a copy from the office of Bruce Thomas, where Young produced it for him. I accept his evidence that he was not fully appreciative of the significance of the new form, and that, as he put it in evidence, he did not appreciate that he was the one assuming all the liability and the surveyor was assuming none at all.

1048. Although the Form in its pro-forma terms clearly referred to compliance with the Act and regulations, Smith told me that he did not appreciate that what he was certifying was compliance of the work, which he had inspected, with the Code and Regulations, rather than merely that it complied with the Plans which had been approved by Andrew Young when granting a building permit for the project. I can not accept that he was unaware that he was obliged to inspect for compliance with the Code, but I am very confident that he is right in saying that to him the certified plans were "the Bible". Having come from a regime where the surveyor was not merely the boss, but was regarded as being both wiser and better qualified, I have no doubt that as a matter of practical reality Smith saw his job as ensuring that the work complied with the plans, because once the surveyor had certified the plans it followed, so far as Smith was concerned, that the plans must reflect what were the requirements of the Code. Any apparent deviations from the Code, so far as he was concerned, would have had an explanation which for the most part Smith would not see it to be his job to ascertain.

1051. Smith, on one occasion, did, in fact, query whether the plans were consistent with his understanding of the Code but his dealings with the surveyors on that occasion would have tended to confirm his belief that the plans were in compliance. Although Thomas was at pains to distance himself from this job after December 1993, save for limited oversight and public relations roles, Smith regarded himself as working to both Thomas and Young. He said he had direct dealings with Thomas about a problem in December 1994 concerning bracing panels. Thomas sent him to speak to Scolaro. He also spoke to Young, on another occasion, when Scolaro had suggested a deviation from the plans and Young told him to tell Scolaro to follow the plans, and, as I later discuss, Smith once queried with Young whether the Code requirement for storm water overflow were being met by the plans.

1054. Smith said that on this job he was working to the Plan, not to the Code, and he understood that was his task. Smith said he read Plan 18B as specifying that the Detail applied only to the entry to the apartments, and not to the internal stairs, and that Elevation 4 applied to the internal stairs, and showed that 950mm was required to be the height. He said the Detail stipulated tiles, which only applied to the outside of the building, and that is why the Detail did not apply to the internal stairs.

1057. Smith said he never measured this balustrade, but walked through the stairwell many times. He would not carry a tape measure with him, as it would make him appear inexpert, to have to rely on a tape. He would look at the rails and say to himself that they were the right height. He knew a point on his body which equated to 950 mm, but he did not actually lean against the rails. He knew that the Code specified 1000 mm (but later said it also allowed 865 mm for the first 500 mm on a landing), but since the approved plan said 950 mm, then it was an approved height. He knew that balustrades less than 1000 mm could have been approved. He did not know why he did not query with the surveyor why 950 mm appeared. He did not notice that there was a post shown on the plan which was missing at the site, and that an extra step had been added.

1060. Smith was adamant that the rail was at 950 mm when he did his inspection. He was convinced that there was no carpet down, and so if you allowed 20 mm for carpet then the rail at 933.5 to the carpet was over 950 mm to the concrete. He said "I knew it was right because I felt it was right, in compliance with the Code". He could not explain how so many rails in Block 3 were below 950 mm, and some as low as 920 mm. Had the rails been less than the Plan height of 950 mm he would not have approved the work, he said. Smith said he believed that he was certifying that the building was fit to live in, not that it complied with the Code.

1063. Having regard to the opinions of the independent expert witnesses I conclude that it was the accepted practice within the industry that in calculating the height of the balustrade the distance was to be measured by the inspector from the finished floor covering, not from the concrete. It was also the industry expectation that a building inspector should actually measure the height of the balustrades in order to certify compliance. Having found the balustrades below 1000 mm and having checked the plans and noted the dimension of 950 mm in Elevation 4, Lorenzini said that a reasonable inspector should then have advised the surveyor of his discovery. Whilst Lorenzini said that a building inspector observing 950 mm on Elevation 4 could have assumed that the height had been approved by the building surveyor, a competent inspector, not knowing as a fact whether there had been a modification allowed by the surveyor or the Building Appeals Board, would provide the opportunity for the surveyor to advise whether a variation to the Code had been sought and approved. The inspector could contact the architect, or the project manager, but would provide the surveyor with a copy of any advice he had given to the architect. A reasonable inspector would not simply issue a Form 14 without having the uncertainty resolved by the surveyor.

1066. To understand why, in the face of the terms of his letter of engagement, and of his past experience as an inspector, Smith might genuinely dispute the contention that his obligation was to ensure compliance with the Code and regulations, it is necessary to know something about the personality of Smith and the understanding which he brought with him to this job. As I earlier noted in the section concerning the corporate surveyor, Smith had been chastised by Thomas when he had worked on the casino job, for having taken up an issue directly with Hudson Conway. Smith interpreted that rebuke as Thomas telling him "there was to be no more of that", and that Thomas had "taken away his power" to give a direction to the builder. Smith said that under the former regime inspectors were armed with a written authorisation from their Council, advising that they had authority to give directions, but under the new legislation the inspector had no power to give directions save as directed by the surveyor. When, on one occasion, he had queried with Young whether the Code was being complied with at Balmoral Apartments with respect to the removal of storm water Young told him it was, and that he should follow the Plan. Smith said he took that to be Young's way of telling him "back in your box".

1069. It would accord with my perception of Smith that notwithstanding the fact that he did raise his concern with Young about the storm water situation, and other matters too, he would be very slow to cause difficulties on a project, but he would certainly do so if he thought public safety or health were at risk if he passed something which concerned him as to those matters. It follows that either he did not observe that this rail was below the Code requirement of 1000 mm or else he did not think that a safety issue arose by virtue of the height (possibly, assuming the surveyor, knowing best, had got approval for the lower height). I discount the possibility that he actually decided that there was an interpretation of the Code which permitted a height below 1000 mm for the first 500 mm along a landing. That was ex post facto rationalising on his part.

1072. Smith is a person of relatively limited education, who, I believe, was immensely proud of his work as an inspector. His original experience in the building industry came about by virtue of his talent for making scale models of buildings, a talent which he displayed by the tender of a scale model of the stairways and landings in this case. His scale models display care and attention to detail, and I have no doubt that he sought to bring such skill to his work as an inspector, however, his understanding of his role was greatly influenced by his understanding of the relative inferiority of his own position vis-à-vis qualified surveyors. To Smith the approved plans were the "Bible", because the very fact that they had been approved meant that a surveyor had already checked that the plans were in accordance with the Code and regulations, and it would be a rare event indeed if he, a mere inspector, were to query the professional judgment in that respect of a surveyor.

1075. I do not accept that Smith was told by Young that he was to ignore the Code and just follow the plan. I think that, in hindsight, Smith has put that gloss on discussions he had with Young but that Young, each time, considered that the example was one where the Code was complied with. But the reference to the plans, and to "follow the plans" may well have been said by Young, and meant no more than that the plans are right; that they comply with the Code. Certainly, on this job Young would have had no doubt if asked at the time whether every plan he certified did meet the Code. His less than careful examination of the plans had not suggested otherwise to him.

1078. Lorenzini agreed that a surveyor might approve a plan where the balustrade was less than 1000 mm where in the opinion of the surveyor the primary requirement of clause (b) of D2.16 of the Code was met, namely that the balustrade "must restrict persons accidentally falling from the floor". The inspector would not know whether any discussions between the architect and surveyor had led to a decision that a balustrade less than 1000 mm would be approved. Lorenzini agreed that the role of the inspector was to satisfy himself that the building work complied with the approved plan, but I did not take that to be a denial that the inspector was also concerned with Code compliance.

1081. Smith, having issued the Form 14, knew that the surveyor was entitled to rely on it. At the very least, Smith had an obligation to ensure that the balustrade complied with the height shown on the approved plan, and it did not, since the height should have been measured from the finished surface, according to the expert evidence, which I accept. Indeed, as Exhibit J demonstrated, when Robert Lorich inspected the building, of eleven balustrades measured in the entire Block of units all but two were less than 950 mm, with one being as low as 920 mm.

1084. Smith could not explain how the particular balustrade did not even measure 950 mm. He initially suggested that concrete filler must have been placed on the concrete floor, thus raising the height of the floor surface of the landing after he had performed his inspection. The carpets were removed during the trial, for inspection, and it was conclusively demonstrated that that had not been the case. Smith then said that the explanation was that the carpet must have been laid after he had performed his inspection, and that the underlay and carpet depth explained the difference. That, too, is an explanation which can not be accepted. In my opinion, it is highly probable that at the time when Smith conducted his final inspections for the purpose of his Form 14 the carpet must have been already laid, but even if that was not so Smith should have known that the measurement of 950 (even if he took that to be the required height) was measured from the finished surface and that any inspection which did not allow for the addition of the carpet would lead to a balustrade being erected at a height less than 950 mm.

1087. It was submitted by counsel for Bigridge (and supported by other builder defendants) that Smith was being deliberately evasive and dishonest in his evidence, in particular in saying that he believed his obligation was to check compliance with the plan and not compliance with the Code. It was submitted that he "feigned ignorance" about his powers under the new legislation.

1090. I reject the suggestion that Smith was being deliberately evasive or was being dishonest in giving his evidence. Smith had great difficulty in giving his evidence. He suffered problems due to his diabetes and had to leave the box several times when he was about to faint. He had obvious and, I consider, entirely genuine, difficulty with many questions. He was cross examined at great length, not unfairly, but in a manner which I think severely taxed his intellect and stamina. He had particular difficulty with multi-faceted questions. None of his reactions were feigned, in my opinion, as I observed to counsel during the course of his evidence. When he complained to counsel that their questions were too complicated for him to follow or said "My brain's gone. I can't think any more", he was being totally honest and guileless.

1093. Although I think it is the fact that the recent change to the privatised system and the loss of support mechanisms which he had under the former regime (together with the failures of Thomas and Young to appreciate the misunderstandings Smith brought to the job) were factors which played a part in the events here, the evidence is overwhelming that Smith failed to bring the standard of care to his task of inspection which a reasonably competent inspector should have applied. There is clear negligence on his part, and that was a cause of the plaintiff's injury.

1097. As finally advanced in the course of closing addresses, the plaintiff's case against Davidson Hughes/HCML asserted breaches of duties of care which were variously described. The claims may be summarised as follows:

(a) HCML, as project manager and agent for the owner of the premises, had actual knowledge of the height of the balustrade and chose not to correct it, and Davidson Hughes is vicariously liable for the failure of HCML;

(b) Davidson Hughes/HCML was the actual builder on the project, and owed a duty of care, as builder, to take reasonable care to ensure that the balustrade was safe and compliant with the Code;

(c) Davidson Hughes had a non-delegable duty of care which obliged it, through its agent, HCML, to

(i) Inspect the premises for dangerous defects;

(ii) Supervise Scolaro's so as to ensure that it was exercising reasonable care;

(d) If Davidson Hughes had, merely, a delegable duty of care it did not discharge that duty of care by the engagement of a competent independent contactor because:

(i) Scolaro's was not a competent contractor;

(ii) Scolaro's was not an independent contractor, because HCML had control over its performance.

(e) Davidson Hughes/HCML were in breach of a statutory duty imposed by virtue of clause D2.16 of the Building Code of Australia.

1103. I have concluded that HCML, through James, had actual knowledge of the deficiency in the height of the balustrade and chose not to correct it. Whether he knew it to be in breach of the Code, or merely contrary to the Plan, he had actual knowledge of facts which, had he pursued the matter, would have established a breach of the Code, which had to be corrected. But it is not necessary to characterise James' knowledge as being of a breach of the Code, because the low rail would constitute a dangerous defect of a character similar to those discussed by the High Court in Jones v Bartlett[19]. That case was concerned with the question of liability of a landlord to a tenant and held that landlords, in certain circumstances, were under duty of care for dangerous defects on the premises, certainly so where the landlord had knowledge of the defect. The content of the duty of care was variously described, essentially being a duty to take reasonable care to avoid foreseeable risk of injury to the tenant. I will deal later with the question which arose in that case whether there was a non-delegable duty imposed on the landlord which in effect required that the landlord oversee the work of a contractor to ensure that a dangerous defect had not been created or left unattended.

1106. What is clear, however, is that in Jones v Bartlett the dangerous situation was created by the contractor and the landlord was unaware of the dangerous situation[20]. Had the landlord been aware of the danger and done nothing to correct it, not even by engaging a contractor to fix the problem, then it is plain that the Court would have held that the landlord was liable for breach of a duty of care imposed on well recognised grounds of negligence, having regard to principles of reasonable foreseeability and proximity[21]. A similar duty would be appropriately cast on an owner/occupier in the position of Davidson Hughes to deal with dangerous defects of which it was aware through its servants or agents. Certainly, Davidson Hughes, through HCML, were in a position of control, by virtue of their contract with Scolaro's, so as to ensure that the deficiency was remedied. Thus, subject to the question, which I next discuss, as to the authority of James - on behalf of HCML and, in turn, binding Davidson Hughes - to decline to take action to correct the defective balustrade, the latter, as owner/occupier of the building when the dangerous defect arose failed, through its agent, to exercise reasonable care to remove the defect and make the premises safe, that being the content of the duty of care applicable in such circumstances, as recognised by Gummow and Hayne JJ in Jones v Bartlett[22].

1109. Mr Riordan, senior counsel for HCML, conceded that a duty to inspect and correct an unusual danger would arise as against Davidson Hughes through its agent HCML were I to hold that that James, having knowledge of the defect and choosing to do nothing to correct it, was acting within authority from HCML[23]. Counsel for Davidson Hughes, however, did not concede that it would be vicariously liable, at all, for such inaction on the part of James and HCML, it not being within the scope of the authority of James/HCML to ignore such a known defect.

1112. Notwithstanding his acknowledgment that he had no authority from Davidson Hughes to permit non-compliance with the Code (and the agreement as to that expressed by Manie and Pradolin), in my view the inaction of James in ensuring that the balustrade was installed at 1000mm was within his authority both from HCML and, in turn, Davidson Hughes. It is not necessary that the particular act was authorised, but is sufficient if James was put in a position to do (or not do) the class of acts complained of. Even if the act which was done within authority amounted to an unlawful act (and I do not conclude that an intentional unlawful act was done here) it would not matter that the principal had directed the agent not to do the act[24]. Furthermore, proof of the authority of the agent to commit a wrongful act is needed only when the agent has acted outside the scope or course of its agency[25], which was not the case here. In my opinion, having regard to the role played by James for HCML during this project, decisions such as that taken by James not to fix the balustrade were within the scope of his authority. Having regard to the relationship between Davidson Hughes and HCML it is equally apparent that the decision of James not to correct the height of the balustrade not only was within the scope of his authority with HCML, but was within the authority of HCML in acting for Davidson Hughes.

1115. Thus, Davidson Hughes is liable for the inaction of HCML, through James, in addressing the danger posed by the low balustrade.

1118. I have also concluded that Davidson Hughes breached a statutory duty of care which it owed under clause D2.16. Mr Riordan, for HCML, contended that if I held that there was a duty imposed by virtue of that provision of the Code then it was imposed only on the builder and on the owner of the property, Davidson Hughes, but not also imposed on HCML, which was merely the agent of Davidson Hughes. He submitted that only the builder and owner could be said to "provide" a balustrade. Mr Riordan's primary submission, however, was that Davidson Hughes was not, itself, liable for a breach of D2.16, because it had engaged the builder as an independent contractor, and it was the builder who was charged with the task of discharging such duty. Mr Riordan cited Stoneman v Lyons[26], and passages in the judgments of Stephen J and Mason J. As those judgments make clear, the question of the scope of the statutory duty is a matter of statutory interpretation. As I have earlier discussed, I am satisfied that Davidson Hughes was itself subject to the statutory duty imposed by D2.16.

1121. The role and position which project managers such as HCML now often fill is a relatively recent phenomenon in the industry and might be expected to have been within the scope of those intended by the drafting committee to be embraced by the obligations of D2.16, but (as earlier discussed) the terms of D2.16 do not suggest to me that a project manager - which essentially takes the role of an architect providing full services to an owner - has been included in the scope of the duty imposed by the clause so as to be personally subject to the statutory duty, over and above its role when acting as agent for the owner.

1124. The two bases of liability which I have held apply in this case as against Davidson Hughes - actual knowledge (through its authorised agent) and breach of statutory duty - would render Davidson Hughes liable to the plaintiff, and the actual knowledge, and inaction, of HCML would make it liable to the plaintiff in its own right. The conclusion that liability for the plaintiff's injury has been established as against both defendants, on those grounds, would be sufficient for me to resolve the plaintiff's claim as against Davidson Hughes and HCML, without it being necessary to explore the additional and alternative bases of liability which were addressed by counsel during submissions - a tempting prospect, given the mire of complexity which now attends the law of negligence (in particular, as to concepts of non-delegable duty of care). However, in view of the depth of submissions that were made to me on the alternative bases of claim, and in light of the fact that a comparison of the number of alternative bases of liability as between defendants may have relevance to the apportionment of liability as between them (although I reach no conclusion as to whether that would be so) and having regard, too, to the possibility that my decision as to those bases of claim which I regard as having been established may be tested on appeal, it is appropriate that I address the other bases of claim which were advanced.

WAS THE DUTY OF CARE OF DAVIDSON HUGHES/HCML DELEGABLE?

1128. Insofar as Davidson Hughes and HCML were under any duty of care to the plaintiff their answer is that any such duty could be discharged, and was so discharged, by the employment of an independent and ostensibly competent contractor, Scolaro's (and also the engagement of the surveyor and its engagement, in turn, of the building inspector).

1131. I dispose of one argument immediately. Counsel for Moore and counsel for the surveyor submitted that HCML breached its duty of care to the plaintiff because it failed to engage a competent builder. Mr Riordan, for HCML, submitted that although much was said about the competence of the first defendant it had never been pleaded that Davidson Hughes/HCML were negligent in that it was unreasonable for them to have considered Scolaro's to be a competent builder at the time they made that choice. I agree with that objection, and I will not treat that as an allegation which has been pleaded against Davidson Hughes/HCML by the plaintiff. Whether that contention is relevant to any cross proceedings as between the defendants is a matter I will put to one side, for future consideration, if required.

1134. As to the question of the independence of Scolaro's, I will later review the evidence in the case, and, as I will then indicate, I conclude that Scolaro was, indeed, an independent contractor.

1137. I examine, first, what was said to be the non-delegable duty of care which rested on these defendants, and the scope of that duty.

1140. If a non-delegable duty is to be found in this case what are the special factors that cause it to arise, and produce the result that Davidson Hughes/HCML can not rely on the employment of the independent contractor, Scolaro? Several possible factors were identified. First, it was said that Davidson Hughes/HCML, in reality, was the builder, and had the non-delegable duty which a builder holds in such circumstances to those who may be injured by its negligence. Secondly, it was said that Davidson Hughes/HCML by failing to require the architect to conduct defects inspections had assumed for itself that task, but then failed to conduct adequate inspections (the work of Noonan, the employee of HCML, failing to identify the non-compliant balustrades). Thirdly, it was said that HCML was on notice, by virtue of the incompetence of Scolaro, that defective work was likely to occur. Furthermore, because it knew the external balustrades had been erected too low, it should have been alerted to check the internal balustrades, also. Thus, a dangerous defect which would not be known to users of the handrail had been drawn to the notice of the owner/project manager sufficiently clearly so as to impose a duty of care on them to check for and to take reasonable steps to eliminate such a defect.

1143. To deal with the first of those contentions, the case was put against Davidson Hughes/HCML that the true relationship between Davidson Hughes and HCML was not that of principal and agent, but of joint venturers, and that they should together be regarded as being the actual builder, and to have retained the personal duties of care which rested with a builder to supervise its sub-contractors (as to the liability of a builder for personal injury caused by his negligence, see Bryan v Moloney[27]). As my analysis of the facts will later demonstrate, I do not accept that the role of HCML, as Project manager, or of Davidson Hughes and HCML, together, reflected the fact that either separately or as a joint venture they were engaged in the project as builder, so that they in fact controlled Scolaro as to the construction process. For the same reasons, I reject the contention that, as a matter of law, Scolaro's was not an independent contractor. This argument also introduces discussion as to whether a "developer" has a recognised non-delegable duty of care by virtue of its relationship to the builder. I will deal with that question, later.

1146. I reject, too, the contention that the failure to direct the architect to conduct defects inspections imposed a duty on HCML, owed to the plaintiff, to do so (whether in its own right and/or as agent of Davidson Hughes), and that those inspections must have been such as to have exposed the defect in the rail. I will discuss the evidence on this point later, also.

1149. Likewise, I will later consider the contention that a non-delegable duty arose because HCML was, or ought to have been, on notice that a dangerous defect existed on the premises.

1152. Before discussing the law relating to delegable and non-delegable duties of care, I will first address some of the evidence which is relevant to these questions.

THE EVIDENCE AS TO A NON-DELEGABLE DUTY HELD BY HCML/DAVIDSON HUGHES

1156. As emerged in the evidence, Hudson Conway Limited, of which HCML and Davidson Hughes were a part, was regarded by those in the industry as being a very significant force in the industry, responsible, as builder, for major projects, including the Crown Casino, and in a powerful position to dictate terms with those whom it offered work on its projects. It both conducted projects as builder, itself, and also acted as project manager and entrepreneur/developer in some cases, having contracted with a builder on those occasions to perform the building work.

1159. Scolaro's foreman carpenter, Caverzan, when asked whether Hudson Conway were the real builders on this job said "they were certainly the main influence on the job, yes. Not much was done unless they either knew about it or were involved with it." He went further and said that "you couldn't make a decision without going to the . . . yes, for sure". That may have been Caverzan's perception, but it is clear that whilst HCML was in a much stronger and better informed position than most project managers it did not, as a matter of course, give directions to contractors on the job, including to Scolaro's staff. Caverzan himself illustrated that reality. He said he once approached James out of frustration that Scolaro was incapable of forcing the balustrade sub-contractors to deliver material which was not buckled, and to install the rails in an appropriate manner so as not to leave an inappropriate gap below the lower horizontal rail. Yet Caverzan considered that he was going behind the back of Scolaro, and that it was not the done thing for him to have gone direct to HCML with his complaint. Even when it was announced at a site meeting that HCML representatives would attend all future meetings of sub-contractors, in order to ensure that the project was speeded up, it was not asserted by any witness that HCML had taken over the direct responsibility, which remained with Scolaro's - by contract both with HCML and with the sub-contractors - to direct the sub-contractors. I am quite satisfied that if HCML had wanted the work to be performed in a particular manner Scolaro's would have done what it was told, but if the request did not accord with the plans then Scolaro would have claimed an entitlement to be paid for extras. The question is whether HCML were merely scrutinising Scolaro's performance, as might any interested owner follow the progress of an independent contractor which it had engaged, rather than directing or managing it.

1162. HCML had identical shareholding, directors and company secretary as Davidson Hughes. The latter had no employees at all. The senior employees engaged on this project themselves had no real idea how Davidson Hughes and HCML related to each other, and it is quite plain that Davidson Hughes was nothing more than a convenient vehicle, as land owner, to utilise for the project. No contract between the two companies with respect to this project was ever produced.

1165. Scolaro's contract was with Davidson Hughes, as principal, and was provided to him by HCML, which was a named agent, and was described as Project Manager. Scolaro's contracted, by Clause 14.1, to comply with all Acts and regulations. The date of practical completion was specified as 30 April 1995. It is to be noted that the contract with the architect was with Davidson Hughes but specified that the Project Manager was Simon Webb of HCML (Webb was an architect; he appears to have played little role in the project. The individual title of Project Manager was a matter of some uncertainty, but it was probably taken by Robert Pradolin).

1168. HCML assigned a number of very qualified employees to act on its behalf on this job. Not all had a frequent presence on site, but some were very often in attendance. By Clause 23 of Scolaro's contract it was specified that the work was to be executed in accordance with the contract and "in accordance with any directions of the Superintendent, pursuant to the provisions of the contract". Graeme Manie was named as the superintendent. In addition, HCML assigned Messrs Pradolin, James and Noonan to the job, and McNamara, who handled the paperwork (including responsibility for examining claims for extras and for payments under the contract).

1171. Robert James had worked for HCML since 1985. A carpenter by trade, he now calls himself a project manager, by occupation, and had taken that role in numerous projects for Hudson Conway prior to this job. He described himself as "site manager" and visited the site for two or three hours daily and dealt mainly with Steven De Pellegrin and also Mr Scolaro, but also dealt with sub-contractors to see how they were progressing. He said his job was "just to ensure that the builder was generally doing what he was asked to do and contracted to do, and that he was meeting programs and he was . . . getting the staff and contractors as he should". When a progress claim was made he would check the site to see if the work was done as claimed.

1174. James said he knew the 1000 mm Code requirement and that the height was measured from the floor coverings. Interestingly, he, in common with Scolaro and Caverzan, also thought that the 1000 mm requirement was a recent change (he thought it had been raised from 950 mm about 12-18 months prior to this job). Although he agreed that he had examined the handrails in Block 3 with Caverzan that was with respect to the stringers, he said, and nothing was then said about the height of the balustrade. He recalled discussion at a site meeting about the height being too low on the external handrail, but not concerning the internal rails. Had he known the rail was too low he would have told Scolaro to fix it, as it was Scolaro's job. He could not explain why there was a substantial improvement in the height of the rails in Blocks 1 and 2 (which were built after Block 3), and denied it was because efforts had been made ensure those were built to the Code.

1177. It was not his job to measure handrails, he said, and although he was aware of the problem of the external rails being too low that did not alert him to the possibility that internal rails might also need to be checked. He was one of those who chose Scolaro for the job, and thought, initially at least, that his work was competent. He denied having any role in supervising Scolaro. He was just an observer, but might make suggestions that the builder should rectify something. But as to checking Code compliance, they had consultants to do that. He denied that pressure was being put on Scolaro to complete the work, but as early as December 1994 minutes recorded anxiety that Scolaro was already well behind in the project. He agreed that by 5 April 1995 any factor which was likely to cause weeks of delay would not have been good, as there were people waiting to move into the units.

1180. James said he had no authority from HCML to approve a Code breach. He was below Manie and Pradolin in the chain of command. Manie, as superintendent, would be the final arbitrator of any dispute.

1183. Robert Pradolin was "Project Manager", and was senior to James in terms of authority. He took over from Simon Webb, an architect, who was named project manager in the architect's contract. Although he held the title of Project Manager, he said he was not really fulfilling that role. The term was used loosely, as an alternative to "development manager" and "Executive". He was a representative of Hudson Conway, concerned with customer satisfaction, whereas a project manager has a much broader role and gets involved in the construction side of a project. He gained qualifications as an engineer (in 1981) and in property development and business administration. He held the position of Senior Executive (Property) with Hudson Conway and was one of those who chose Scolaro's for this project.

1186. Pradolin said his own role was concerned with customer relations and sales, and he was concerned to ensure that the purchasers of units got what they had contracted to obtain. He would attend site meetings every week and also addressed claims and variation requests from his office. He took the minutes at site meetings. He said he had no working knowledge of the Code; it was not his job to check whether the Code was being complied with. He said that the HCML personnel never dealt directly with sub-contractors, but they (not himself) did attend meetings when there was concern about delay. They might discuss things with contractors, but would never direct them. He said Scolaro's had the role of builders, and HCML represented the owners and themselves.

1189. Pradolin accepted that Steve De Pellegrin was the only engineer that Scolaro's had on site. He said he believed that De Pellegrin ran the site. (De Pellegrin told me that he was mainly concerned with the office routine. De Pellegrin said that the job did require a qualified engineer to be running operations, and that he was not filling that role.) Pradolin said that HCML had no engineer permanently on site and that there was no independent engineer permanently on site. The height of balustrades would not be an issue for an engineer to discover. His own role was not as an engineer but as "site representative", concerned with sales and client satisfaction. He said James' role was to ensure, as representative of the owner, that what is hidden from purchasers was structurally sound and represented good building practice. It was James' job to keep an eye on Scolaro to ensure he did not take short cuts which did not accord with the documentation. He said James' role was not as to detail, but was concerned with global issues. If something did not look right then the plans would be referred to by James. Pradolin said the role of Noonan was to pick up things that the customers might notice, like cracks or paint defects and scratches.

1192. Pradolin said that the term "project manager" had many meanings, but HCML could be said to have taken that role, if it meant that it was a role related to sales, marketing and keeping an eye on the construction to see that you were getting what was contracted for.

1195. John McNamara is an accountant and had worked in the construction industry since 1978. He played a part in the awarding of the contract to Scolaro and thereafter in administering payments and variations. He would visit the site perhaps two or three times a month, but did not attend site meetings. According to McNamara, Pradolin was the project manager and was in charge of the consultants to ensure they provided the information that the people on site required. In conjunction with James, he ensured that the project kept on time. He regarded Manie's role as being "construction director", responsible for ensuring the job was finished on time, and to administer the contract; James was "site manager", whose job was to ensure that the building was built in accordance with the contract and the plans. McNamara said it was he who met Scolaro on site after the accident and told him he was obliged to correct the height of the balustrade.

1198. Graeme Manie said he was "Superintendent". It was his job to resolve disputes between builder and consultants and/or HCML. He is qualified as a civil engineer. On at least one occasion he apparently recorded a list of defects which he had seen on a site visit. The defects list was in his name, but he had no recollection of it and did not believe it was his work. Pradolin said he was surprised that Manie would have done that because Manie was superintendent in charge of contractual issues, but he agreed that if Manie saw something wrong then he would note it. Manie said he had no role to check Code compliance, as he had other people do that for him. If there was a defects list in his name then he would not have conducted the inspection himself. James would refer to Manie any disputes. James and Noonan were there to administer the consultants and the builder, Manie said. He was never aware of the rails being low.

1201. Manie said Davidson Hughes was "the vehicle" to own the land and HCML acted for that company. He said it would have been the board of Davidson Hughes which approved Scolaro's appointment. The management of both companies was the same, as were the directors. There was no contract between them. He said this arrangement had been used many times, whereby Davidson Hughes became "the vehicle in order to conduct our business". He thought Scolaro's workmanship was reasonable; it wasn't the best job he had seen and it wasn't the worst. He did not know whether he knew the Code requirements at that time; it was not his job to know. The HCML team on site were not particularly concerned to check Code compliance but to make sure that "the works are done in accordance with the contract and the documents". Had he noticed an apparent defect, such as the height of a balustrade, when he walked around the site he would have dealt with it, but it would have had to be glaringly obvious for him to notice it.

1204. Manie said the project management role was to administer the contract and the consultants. He agreed that HCML did have an inspection role, for defects, and if a non-compliance with the Code came to their attention they would have dealt with it. The architect's role in inspection was restricted to design intent; he knew of no directions to the architect to do other inspections. He said it was the builder's role to ensure Code compliance and it was left to the consultants to check that it had been done. The architect had no role as to Code compliance checking. Manie would have expected James to give any directions, if any were necessary, to the architect for any checks beyond design intent. He would expect the HCML staff to have had a knowledge of, and worked to, the plans, rather than know the details of the Code. He would expect Noonan to perform whatever checks James directed him to perform, which might include checking the heights of balustrades. If Noonan was directed to inspect the balustrades then he'd expect that he would do so. He thought Noonan would have carried a tape, and while he would not be expected to know the terms of the Code, he would have a working knowledge of the Code and would work to the drawings and expect that they represented the Code requirements. Thus, from Manie's point of view, Noonan could have been directed to check the height of the rails, but it was not essential that James would have given him such a direction.

1207. Christopher Noonan was "Clerk of Works", and reported to James on his inspections for defects. James expected that if Noonan had noticed that the balustrade was low he would have reported that, but Noonan's inspections were more concerned with visual/cosmetic matters, not Code breaches. Noonan had over forty years experience in the industry. His own trade was carpentry. He inspected for finishes and aesthetics, he said. He'd do visual checks in units and would, at times, check the plans and specifications. He had not read the Code for twenty years or so, and no one at HCML asked if he knew the Code. He did not know at the time what the height requirements were for a balustrade, but he might measure a balustrade if it appeared to be low. He would look at the balustrades to get an impression whether they appeared even, and he assumed that they must have appeared of satisfactory height to him. He said that his own understanding, based on conversations with James, was that James himself had an inspecting role for HCML, as to structural matters.

1210. That analysis of the evidence of the HCML personnel would suggest that as project manager it had no role beyond looking after the interests of the owner, and specifically did not interfere with the role of ensuring Code compliance, which remained with the builder and the consultants, in particular the surveyor and inspector. If that was so, then HCML could not be said to have itself been the builder on this project or to have been under any broader, non-delegable, duty than might otherwise be assigned to an owner who contracts out the job of construction. But is that a realistic picture of the role of HCML?

1213. Hudson Conway had been engaged in development projects since 1984. It sometimes acted as its own builder on projects, employing sub-contractors and relying on its own expert staff to act as builders. The architect, McKernan, claimed that the role of the Project Manager which HCML took was the role that had once been taken by an architect and which would have entailed the architect conducting its own checks to ensure Plan compliance. His view gained support from other witnesses. Although, at times, some of the opinions expressed intruded into my own role of interpreting the agreements in the present case, the evidence was admissible, and helpful, insofar as it gave an insight into the practice and understanding within the building industry - and the changes over time of such undertakings - of the respective roles of those engaged in building projects.

1216. Consultant architect, Robert Caulfield, said that the role of architects had changed with the introduction of project managers. A contract condition that required the architect to inspect for defects only when and if directed by the project manager demonstrated the increasing practice in the industry that the inspection role that an architect would once have held was taken over by the project manager. That role was one of inspection for compliance with the plans, not the Code, and, in his opinion, it was a role taken over in this case by the project manager, using its clerk of works. Mr Caulfield said that having regard to the contract requirement that the architect be directed by the project manager as to what defects inspections, if any, to conduct, an architect would be entitled, in his view, to conclude that the task of inspection for defects of items including safety items such as balustrades, was being taken by the project manager. (I will return, later, to the contention that HCML assumed the obligation of inspections for Plan compliance which had hitherto been the role of an architect.)

1219. Consultant architect, Mr John Castles, said that he would regard someone appointed to look after the owner's interests as being a project manager. He would not regard a builder as being a project manager. A project manager was an independent person managing the project from start to finish on behalf of the owner, and there were professional project managers, today, which took on that job. Sometimes representatives of the builder took the title, wrongly, as project manager, but they performed a different role. As the job gets bigger the task of looking after the owner's interests under the contract becomes greater and, thus, an agent would be appointed to look after the owner's interest - usually the role being that of an architect, or a project manager may be appointed. In his experience, when a project manager was engaged the project manager would accompany the architect on a defects inspection, and such an inspection would expose deviations from the plans. (Manie said that that was not his experience when a project manager was engaged.)

1222. The building inspector, Smith, regarded Steve De Pellegrin, from Scolaro's, as being the project manager. Speaking of a problem that arose when he refused to approve wall frames in Block 3 due to a camber which had been produced in the floor (because of use of hollow core concrete) he said that James, of HCML, was "sort of like clerk of works for the job from Hudson Conway, and I used to see him fairly regular and I think he had a problem with it and he came down to me to sort it out". As a clerk of works Smith said that James "looks after a job for the owner". Smith said that he thought that James could tell the builder what to do about it, "but he wanted to use me, I presume, because I'm the building inspector".

1225. Steven De Pellegrin, who worked for Scolaro's at the time, seemed to me to most clearly and accurately sum up the role of the HCML personnel. He said that James was the appointed representative of HCML to attend site, to answer questions, monitor progress, assess and evaluate progress claims, variations etc. When it was suggested that James was able to give directions to Scolaro he agreed that was so - "generally speaking" - but he rejected the suggestion that HCML was the builder. James did not tell Scolaro how the construction was to be done - "that was entirely our responsibility". James would watch the work, and if he did not like what he saw he would say so, and Scolaro would accept any suggestion, "(p)rovided it was fair and reasonable, and it was in compliance with the contract". He could not recall Scolaro ever rejecting such a suggestion. As to Manie, De Pellegrin said he, too, was quick to express his opinion if he did not like something on the job. Pradolin was the "project manager" for HCML, De Pellegrin thought. He would occasionally give orders. McNamara's role was financial. Noonan was the quality controller or defects man. He would report any defects he found to De Pellegrin or one of the other Scolaro's men.

1228. George Scolaro said that Hudson Conway was "a huge firm that were controlling the work". James' role was to supervise the work, he said, and to make sure everything was going along as planned, to specification, and "if we take a short cut, pull us up". He would make you redo the work if he was not satisfied. Noonan's job was "Picking any defect, whatever you can think about". He described James as being the "principal", on site, and said he asked James what was to be done about the low balustrade and was told he would check with Manie. When he proposed a corimano he was asked for an estimated cost and James later said it was not required.

1231. In answer to leading questions by counsel anxious to implicate HCML, Scolaro agreed that he was taking orders and directions from HCML people on this job, and that it was HCML which was running the construction. He agreed - "definitely" - that he would need to get HCML authority for fixing up any problem. If Scolaro's did something wrong it was HCML which told him to fix it. He agreed that his own organisation was small in comparison to HCML. It was put to him that HCML "was effectively the builder" and said "you can call them that, yes". To further leading questions, he agreed to propositions that James "was the man who your people had to go to for their day to day instructions". I do not place much weight on any of the responses to such leading questions by Mr Scolaro.

1234. It was contended in final addresses that HCML/Davidson Hughes was actually the builder of Balmoral Apartments and carried the duty of care appropriate to a builder. A related or alternate way of posing this question is whether HCML were in such a position of control over the builder that there could be no question of Scolaro acting as an independent contractor. That contention was not only the basis for arguing that HCML was the real builder, but was also the basis for arguing that if there was a personal duty of care on HCML/Davidson Hughes which could be discharged by engaging an independent contractor, then that was not done in this instance, because Scolaro's were not independent of HCML.

1237. In my view, the evidence does not support the conclusion that HCML was acting in such a manner and with such control over the day to day construction that it should be regarded as the builder (in a joint venture with Davidson Hughes, as it was suggested). Not only did the contractual arrangements all reflect an owner/builder relationship between Davidson Hughes and Scolaro's (with HCML as the owner's agent) but the evidence to which I have referred, above, reflects that whilst HCML was in a powerful position to dictate to Scolaro's what it wanted done at the site, it did so in the manner of an owner, and recognised that, as a matter of law, what could and could not be demanded depended on the terms of the contract Davidson Hughes had with Scolaro's. HCML did not take control of and direct the sub-contractors, as did the builder. I will later examine the separate question whether Scolaro's was a truly independent contractor.

1240. There were other ways in which it was put that HCML/Davidson Hughes was in breach of a personal duty of care. It was submitted, for example, that HCML/Davidson Hughes assumed a liability in this case to conduct defects inspections by virtue of the fact that HCML did not direct the architect to conduct such inspections, and had not contracted anyone else to do so. I have earlier referred to the evidence of Mr Caulfield in support of that contention.

1243. HCML relied on the inspections by the surveyor/building inspector, but it is clear that defects inspections, if conducted by an architect, would be in addition to any such inspections conducted by others, and would include checking for compliance with plans, rather than for Code violations. A check for departures from the plans, however, should have led to discovery that the rails did not comply with the plans, and hence the Code. But was the failure to conduct such inspections for departures from the plans, or the Code, a failure of any duty of care owed by HCML/Davidson Hughes towards the plaintiff?

1246. It may be that the plaintiff would have been the beneficiary of such inspections but the defects inspection was conducted, on behalf of the owner, to satisfy the owner that the job had been done which was contracted to be done, and to ensure that any defects which had been created by the inadequate work of the contractors were corrected on the premises. I am unable to discern any duty owed to the plaintiff and breached by virtue of HCML not having ensured that the architect conducted defects inspections or by failing itself to conduct such defects inspections as the architect would otherwise have conducted.

1249. Next, I will turn to the suggestion that a non-delegable duty of care existed which obliged Davidson Hughes/HCML to ensure that Scolaro's exercised reasonable care in the performance of its duties. I will address, too, the related questions whether - if it was to be regarded as having a delegable duty of care - the duty of care was not, in fact, delegated in this case to a competent independent contractor, either because Scolaro was not an independent contractor (being under the control of HCML) or else was not a competent independent contractor. I deal with these questions as a matter of completeness, they being issues which would require resolution had I concluded that HCML did not have knowledge of the defect, through James. Could there have been any liability in HCML/Davidson Hughes by virtue of a personal duty of care?

THE LAW RELATING TO THE DUTIES OF CARE OWED BY DAVIDSON HUGHES/HCML

1253. The notion of non-delegable duty was examined exhaustively, but without clear resolution, in Northern Sandblasting Pty Ltd v Harris[28]. In Jones v Bartlett[29] Kirby J concluded that there was no ratio which could be extracted from the earlier case which had endorsement by a majority of the court, and that the case therefore provides no support for the concept of non-delegable duty, at least so far as it affects the duties of a landlord to a tenant. I have discussed the legal issues relating to a non-delegable duty in my earlier discussion as to the liability of the surveyors, and much of that discussion remains relevant, but the issues concerning Davidson Hughes and HCML introduce some different considerations to those earlier discussed.

1256. Mr Casey, senior counsel for the plaintiffs, submitted that I need go no further in consideration of the non-delegable duty than to apply the decision of the New Zealand Court of Appeal in Mt Albert Borough v Johnson[30], in which Cooke and Somers JJ (with whom Richardson J agreed) held that in the case of a developer who was building for the purpose of resale to the public, but who engaged a builder to construct the premises, the developer had a non-delegable duty to see that proper care and skill were exercised in the building process, which duty was not discharged merely by engaging an independent contractor. That decision was criticised by Brooking JA in Zumpano v Montagnese[31], and the principle was doubted but not deemed relevant to the decision of Tadgell and J.D. Phillips JJA, but the case was described, generally, as "persuasive" authority by Mason C.J., Deane and Gaudron JJ in Bryan v Moloney[32]. The criticism directed to the New Zealand case by Brooking J was, in effect, that he could identify no special element which would give rise to the special responsibility which, on the authorities - including those cited in Bryan v Moloney - seemed to necessarily exist for a non-delegable duty to arise. Tadgell and J.D. Phillips JJ.A, who expressed doubt that the decision would be applied in Australia, suggested that one apparently relevant factor for the Court's finding, in Mt Albert Borough v Johnson, of a non-delegable duty owed by the developer, was that the developer was identified with the builder.

1259. As was noted by Tadgell and J.D. Phillips JJ.A, the decision in Mt Albert Borough v Johnson, does not clearly spell out the basis on which the non-delegable duty was imposed on the developer. In the passage in which Cooke and Somers JJ reach their conclusion that a non-delegable duty arises, their Honours note the difficulty of identifying, from authority, any clear principles relevant to the issue, but nonetheless make express reference to Anns v Merton London Borough Council[33], a decision which was not followed by the High Court in the decision of Sutherland Shire Council v Heyman[34], which, in turn, was decided after the New Zealand decision.

1262. The concept of a non-delegable duty of care has been the subject of much analysis in the High Court, but seems to be still developing. For present purposes, the identification of such a non-delegable, or personal, duty may be seen to potentially arise in one of two ways (although the relevant principles merge and relate in a way which makes it inappropriate to see these as being discrete duties of care or as being other than merely instances of what Gleeson CJ (approving a statement of King C.J) called[35] the application of the modern doctrine of liability for negligence as it has developed since Donoghue v Stevenson[36]). The first of those approaches is identified in Kondis v State Transport Authority, the second in Jones v Bartlett.

1265. As earlier noted in my reasons, when dealing with the duty imposed on Bigridge, in Burnie Port Authority v General Jones Pty Ltd[37] it was held, in the joint judgment - accepting the reasoning of Mason J in Kondis v State Transport Authority - that there were some categories of case where the risk and the relationship of proximity required that a more stringent duty be imposed, one that could not be discharged by employment of an independent contractor. It was a duty to ensure that reasonable care was taken by the contractor. In Kondis[38], Mason J, with whom Deane J and Dawson J agreed, identified the common element which gave rise to the added duty as "the central element of control", it being a control so exercised that the person whose safety was endangered might reasonably have expected care to have been exercised, and, in addition, the relationship of proximity which gives rise to the non-delegable duty of care is marked by "a special dependence or vulnerability"[39] on the part of the person to whom the duty is owed. It is to be noted, however, that - as Gummow J has emphasised in Scott v Davis[40] - Mason J in Kondis[41] identified two separate instances where a special element of the relationship might give rise to a non-delegable duty. As re-stated by Gummow J (to emphasise the distinct categories) Mason J identified cases where either (a) the person on whom the duty is imposed has undertaken the care, supervision or control of . . the person or property of the plaintiff as to assume a particular responsibility for his or its safety (or) (b) cases where the defendant is so placed in relation to the person or property of the plaintiff as to assume a particular responsibility for his or its safety. In both cases the special circumstances thus identified must be such that the person affected might reasonably expect that due care will be exercised.

1268. As to the first category identified by Mason J, the notion of control relates closely to the role of the surveyor in this case, but not, I consider - and as my analysis of the facts, I believe, demonstrates - to the role of HCML, which at no time acted in a manner demonstrating an assumption of control over safety aspects of the construction on the premises. (I exclude from this discussion my conclusion that James did authorise the balustrade to be left at its non-compliant height. This analysis of non-delegable duty is addressed as an alternative to my conclusion, on that basis, that HCML and its principal are liable to the plaintiff). As to the second of the categories identified by Mason J, namely, cases where the defendant is so placed in relation to the person or property of the plaintiff as to "assume particular responsibility" for the plaintiff's safety, the position is less clear.

1271. Mr Riordan, for HCML, focussed attention, particularly, on the discussion of a non-delegable duty as arose in Jones v Bartlett, with respect to the relationship of landlord and tenant, and that was the basis of liability to which other counsel also directed much of their attention.

1274. Mr Riordan accepted that his client, as the agent of the owner/developer, was bound to meet the duty of care imposed on an owner/developer. That duty of care, he submitted, was not unlike (and no higher than) that discussed by Dawson J (with whom Gummow J agreed) in Northern Sandblasting Pty Ltd v Harris[42] with respect to a landlord and guest, and as discussed in Jones v Bartlett[43] as applicable to a landlord and tenant situation. The duty in the former situation was described as being to take reasonable care to avoid foreseeable risk of injury, and in the latter situation (although expressed in many different ways) as being to ensure that the premises are reasonably fit for the purposes for which they are let.

1277. The nature and extent of the duty of a landlord towards a guest was said by Dawson J to depend upon the circumstances of the case, and one such element may be the question of control over the premises and the opportunity given to the landlord to arrange for inspections of the premises by an expert[44]. The utility of such a test was doubted by Gummow and Hayne JJ[45], in Jones v Bartlett, but their Honours did opine that by virtue of the comparatively greater degree of control over premises that an owner/occupier would retain, in contrast to the situation of a landlord, it might be said that the duty imposed on a landlord would be less than that of the owner/occupier. As I earlier noted, "the central element of control" was identified as a critical feature of the non-delegable duty cases discussed in the joint judgment in Burnie Port Authority v General Jones Pty Ltd.

1280. The landlord's duty, Gummow and Hayne JJ considered, would require that the premises be reasonably fit for the purposes for which the building was let, and one relevant question (and the appropriate question in the present case, given that the low balustrade would constitute a hidden danger) would be whether the premises as let contained a dangerous defect, which the entrant would not appreciate, because "they are dangerous in a way not expected by their normal use". Their Honours added that as to normal domestic items (which included floors, fans, glass panes, electrical circuits, ovens, etc), the principle was confined to items which "will only be defective if they are dangerous when being used in a regular fashion, and ordinarily would not be dangerous when so used" and suggested that there would not ordinarily be a dangerous defect if the defect only emerged by the performance of an act which was unauthorised or uncontemplated.

1283. Gummow and Hayne JJ also considered whether the landlord had any duty to inspect so as to discover any dangerous defects, and concluded that ordinarily he would not, but the content of the duty would necessitate consideration whether an ordinary person in the landlord's position would have contemplated any risk, and if so what steps would have been reasonable to take. Their Honour's noted, however, that "the landlord may have sufficient knowledge or suspicion to make it unreasonable to fail to act"[46]. In discussing the facts in Northern Sandblasting, their Honours observed in Jones v Bartlett that the dangerous defects in the earlier case were not detectable by a landlord inspecting the premises, and nothing had occurred to make their existence or likely existence known to the landlord. It was held in Northern Sandblasting that the dangerous defect which arose with the stove occurred as a result of the negligence of an electrician employed to fix the stove, and that involved no breach of duty by the landlord because he was obliged only to engage "a licensed and ostensibly competent electrician" to conduct the repairs.

1286. Mr Riordan sought support from the decision in Jones v Bartlett and submitted that the owner and its agent were under no obligation to conduct inspections for defects which it could not reasonably have suspected to exist, but even if there was such a duty then, he submitted, it was fully discharged by employing an ostensibly competent builder, and, in turn, surveyors and inspectors, to conduct such checks, and it was not liable for their negligence in the conduct of their work or inspections.

1289. I have discussed various factors and considered whether they were sufficient in themselves to constitute what Brooking J.A called the "special element", which on the authorities, must exist before the "special responsibility" of a non-delegable duty would be identified in a given situation[47]. I have concluded as to each such factor that either the allegation was not factually established, at all, or to the necessary degree, or else that it was not a factor sufficient to give rise to the non-delegable duty. But what of the combined effect of such factors?

1292. It is important to keep in mind first, the warning of Gleeson CJ in Jones v Bartlett[48] that there is no such thing as absolute safety and that every residential premises contains hazards to both visitors and owners. The mere fact that something is foreseeable does not mean that there must have been a breach of duty by someone if the event occurs. The second matter to keep in mind is the benefit of hindsight, which may tend to emphasise a duty and its breach when it would not have been reasonable for a person in the position of the defendant to have so identified those matters at the time[49].

1295. The appropriateness that the duty of care identified in Mt Albert Borough v Johnson might also be held to apply to the circumstances of the present case gains added weight when one considers, together, the factors earlier considered individually. Among the factors which potentially bear upon this question are the following: that, as I conclude to be the case, HCML must have known that Scolaro and his sub-contractors were performing work which was sub-standard in many respects; that although there was a reason why the external balustrade was built below Code the mere fact that it was might have alerted HCML to the need to ensure that the internal balustrades were checked; that HCML chose not to require an architect's defect inspection; the expertise available to HCML, and its considerable influence on site. Taken together, those factors reflect that HCML was performing a role as agent for Davidson Hughes which constituted Davidson Hughes to be more than merely an interested, but otherwise uninvolved, observer of the performance, by Scolaro's and of the consultants in the project.

1298. The position of Davidson Hughes in the present case is not that of the average owner of property which engages a project manager, and the role and status of HCML (and its relationship to the owner) is a special, if not unique, one within the industry; a role which carried exceptional power and capacity to influence the actions of those on site, if it so chose, irrespective of the contractual relationship between those parties. Thus, even if HCML had no contractual entitlement to dictate how the sub-contractors performed their work, it had ample economic and practical influence on site to determine the manner of performance by the builder and sub-contractors.

1301. As Gummow and Hayne JJ observed in Jones v Bartlett[50], the factual situation in Northern Sandblasting was one where the dangerous defects were not detectable by the landlord in that case had he inspected the property, and, they added, "nothing had occurred to make their existence or likely existence known to the landlord". Leaving aside my finding as to actual knowledge being held by HCML, through James, HCML had been put on notice of the likely problems with the balustrade not only by virtue, generally, of the poor quality of the work of Scolaro's and its sub-contractors but more specifically by virtue of the knowledge that the external balustrades were built below the height required by the plan. But as I earlier observed, there was an explanation for the low height of the external balustrades, one which did not suggest to anyone that the sub-contractor was ignorant of the Code requirements as to either external or internal balustrades.

1304. Obviously, if the actual defect was known to James (as I consider it was) this analysis is superfluous. Putting that finding to one side was Davidson Hughes, by virtue of the position of HCML in the circumstances of the present case, so placed that it should be held to be under a non-delegable duty to inspect for, and take reasonable steps to remove, the danger created by the hidden hazard presented by the low balustrade. I have held that the non-delegable duty did not arise by reference to the first of the categories discussed in Kondis by Mason J, but did it arise under the second category, that is that Davidson Hughes/HCML were so placed in relation to the plaintiff as to assume particular responsibility for the plaintiff's safety? Notwithstanding the particular features of the role of HCML and Davidson Hughes on this project, I am not persuaded that a non-delegable duty arose on that basis either. That brings me back to the non-delegable duty discussed in Jones v Bartlett and Northern Sandblasting.

1307. The question is whether the duty, which I accept was imposed on Davidson Hughes/HCML, to take reasonable care to avoid foreseeable risk of injury to the plaintiff[51], in all the circumstances of this case was discharged by the engagement of the builder and, in turn, the consultants, or else should be regarded as extending to an obligation to ensure that the builder and consultants did their job properly and did not create and/or leave a dangerous but hidden hazard. The content of the duty of care imposed on the landlord in Northern Sandblasting was not greater than that imposed on an occupier of premises, namely to take such care as was reasonable in all the circumstances[52]. The duty to take reasonable care having regard to all the circumstances would, as McHugh J noted in his dissenting judgment in Jones v Bartlett[53], extend to circumstances of which the landlord ought reasonably have known.

1310. Although the question is by no means beyond doubt, I am not persuaded that a non-delegable duty in the terms discussed in Northern Sandblasting and Jones v Bartlett (but not, in fact being held to apply in either of those cases) did arise as against Davidson Hughes and HCML in the present case. I conclude that had the only basis for liability of Davidson Hughes and HCML been a non-delegable duty of care comparable to that which would arise in some instances concerning a landlord and tenant then the application of such a non-delegable duty had not been established to have applied in the present circumstances, and the more limited duty of care by which they were bound was discharged by the engagement of the independent contractors.

1313. For completeness, I observe that had I concluded that a non-delegable duty of care did exist then although the conduct of Moore and Spreadborough might constitute behaviour which does not amount to the "regular" use of the stairway, I would not have held that the plaintiff's conduct, even if he was very intoxicated, was such as to deny introduction of the non-delegable duty towards him. A user of a stairway, when drunk, should not be at risk of falling over the balustrade merely by virtue of being bumped when leaning back on it. The dangerous defect constituted by the low rail was not, in my opinion, an instance of a defect which only arose (to use the words of Gummow and Hayne JJ) by virtue of the performance of an unauthorised or uncontemplated act.

1316. I conclude, therefore, that the liability of Davidson Hughes arises by virtue of breach of statutory duty and also by virtue of its actual knowledge (through James/HCML) of the danger posed by the balustrade and the inaction of HCML to correct the defect. The liability of HCML arises, independently of its role as agent, by virtue of its own breach of a duty of care arising by virtue of James' knowledge and inaction as to the balustrade.

THE ROLES OF GREGORY MOORE AND DAVID SPREADBOROUGH

1320. Counsel for Moore and Spreadborough submitted that no duty of care was owed by their clients to the plaintiff. Whilst accepting that there was the degree of proximity which would be required, as one element, to give rise to such a duty, they contended that the plaintiff's accident was not reasonably foreseeable. They pointed to several factors in this regard. On behalf of these defendants it was submitted that the risk of injury which the plaintiff suffered was not reasonably foreseeable, nor was it foreseeable that were he to be bumped he may fall over the rail.

1323. It is clear, in my view, that all that is required is that it be reasonably foreseeable that a consequence might occur of the same general character as happened. It is not necessary to show that the precise sequence of events could be reasonably foreseen, nor that the particular accident or the particular injury be foreseen. It is sufficient if the accident is of a class that might well be anticipated to result from the wrongful act[54].

1326. In contending that the plaintiff's injury was not reasonably foreseeable, counsel contended that the low height of the balustrade could not have been known, nor its danger; nor that only the slightest of bumps would be sufficient to cause the plaintiff to fall over the balustrade and to fall into the void of the stairwell. Whilst it was foreseeable that the plaintiff might choose to pass them, the fact that he might do so when they were wrestling was relevant to the content of duty of care, it was submitted. These defendants were entitled to assume that the plaintiff would have warned them of his proximity, or have taken steps to protect himself, or waited until they had ceased their action.

1329. In my opinion, the eighth and ninth defendants were under a duty of care to the plaintiff. They were engaged in a dangerous action on a very narrow landing, and ought to have anticipated that the plaintiff, who they knew to be below them on the stairwell, would attempt to pass. They ought to have known that an attempt to pass would place the plaintiff's body leaning over or very close to the balustrade and, whatever the height of the balustrade, whilst their wrestling continued there was a reasonable likelihood of contact between the plaintiff and themselves; he may have been bumped down the stairs or over the rail, or been injured in some other manner in consequence of their wrestling.

1332. Mr Curtain QC and Mr Saccardo, counsel for Moore, contended that even if Moore and Spreadborough were negligent in wrestling in a manner where the plaintiff may have been struck, their negligence should not be regarded as a cause of the accident. Had the balustrade been at a height required by the Code, namely, high enough to restrict him falling over it, then the injury would not have occurred, they submitted. In my view, this is not a case where the height of the balustrade was the sole cause of the accident. I do not accept that the bump to the plaintiff was so small as to be negligible. The question of causation with respect to an event must be determined by the application of common sense to the fact situation[55]. In my view, a combination of events contributed to the plaintiff's fall, and one factor was the negligence of Moore and Spreadborough, their actions, and their failure to keep a lookout for persons who might attempt to pass, constituting a cause of the fall.

DID RITCHIE TOOMEY CAUSE THE ACCIDENT?: THE EVIDENCE OF DR WIRTH

1336. Dr Peter Donald Wirth was called by counsel for the second defendant. He was the emergency medical registrar at Box Hill Hospital when the plaintiff was admitted by ambulance at about 3 am on 2 March 1996. It was under the direction of Dr Wirth that a request for a blood test was made to the pathology department at the hospital. Dr Wirth was called primarily to attest to the procedures which were followed in the taking of the blood sample and as to there being any signs consistent with intoxication of the plaintiff. There was other evidence given by the witness which received a good deal of attention relating to statements which he attributed to Ritchie Toomey, the brother of the plaintiff, when the plaintiff arrived in the company of his brother at the hospital.

1339. When Mr Gillies outlined this aspect of the evidence in his opening I said that in my view the evidence of what Ritchie Toomey may have said, if admissible at all, was admissible only for the purpose of an attack on the credit of Ritchie Toomey, by way of proof of a prior inconsistent statement made by him. However, when he had earlier given evidence Ritchie Toomey had not been challenged by Mr Gillies that he had made the statement which Dr Wirth now attributed to him. Thus, it could not be said that Ritchie Toomey had denied making the alleged statement and there could be no basis for calling evidence as to the statement, in any event. Mr Gillies did not dispute that analysis of the proposed evidence, but Mr Casey was content that while noting his objection to its admissibility I should hear the evidence and rule on it later.

1342. Having considered the matter further, I am not persuaded that the evidence is admissible at all, and having so decided it would be sufficient for me to leave the matter without further comment, but in the event that my ruling as to this may be tested on appeal I will deal with the evidence. It is also appropriate that I comment on the evidence because having been given in open court in such circumstances, then without my expressing any opinion as to its weight, it has the potential to be repeated and to be treated as reliable by those who may have some interest in the outcome of this case. Having heard the evidence as to this suggested conversation I do not accept the evidence of Dr Wirth as being reliable in this respect and I would not have acted on it had I ruled it to be admissible against the plaintiff. I briefly give my reasons for so concluding.

1345. Dr Wirth gained his primary medical degrees in 1988, and I have no doubt was, and is, a skilful medical practitioner with a special interest in emergency medicine. He gained the specialist qualification of Fellow of the Australasian College of Emergency Medicine in 1998, two years after these events. I have no doubt that Dr Wirth attended to the medical needs of the plaintiff with care and skill. Dr Wirth told me that he was particularly anxious to determine the extent of any intoxication and to that end questioned the person who accompanied the plaintiff and who said he was the brother of the plaintiff. He said that the brother "described vividly" a playful altercation or wrestling event which took place at the top of the stairwell involving both himself and the plaintiff and an unknown number of other persons, as a result of which the plaintiff was pushed and fell and as to the person who pushed the plaintiff the brother said "Oh shit, I think it was me". With the exception of that sentence the account of what had been said was recounted entirely in vague and indirect terms by Dr Wirth.

1348. No record of such a conversation appeared in the hospital notes, or in the outline of evidence of Dr Wirth. He said that he made a deliberate decision not to record it because the hospital notes are intended to be a medical record and what had been said was of such a character that it would stay in his mind without having to be recorded. He said that when something said is "strikingly contentious and said potentially in a stressful situation", as was the case here, he would weigh up whether to put it in the hospital notes, record it in the private notes that he sometimes made for his own record, or else rely on his own ability to remember what was said because, as here, it was "so significant".

1351. Mr Casey challenged the accuracy of Dr Wirth's account of what Ritchie Toomey had said, but in response to what seemed to me to be perfectly proper questioning to test the accuracy of the recollection, there was a remarkable reaction from Dr Wirth, not immediately apparent from a reading of the transcript of his evidence. Almost as soon as the questioning had commenced Dr Wirth adopted a glaring demeanour - modified sometimes with a half smile - and a tone which was at once both hostile and defensive, and absurdly so. There was thinly disguised contempt for the questioner evident in Dr Wirth's manner. In the course of questioning, Dr Wirth offered a gratuitous complaint that he had to pay $28,000 per annum for insurance against legal action, and it was very apparent from his manner that he held a deep-seated hostility to the conduct of litigation such as that brought by the plaintiff, which he described as being "quite a spectacular legal case". It emerged in re-examination that among the recent appointments which he had held was a period of 14 months as an adviser to a body which he was reluctant to name because of a confidentiality agreement, he said, but eventually identified as being Medico-Legal Consultants of Australia, a body which he said acted on behalf of 150 to 200 specialist medical practitioners investigating long term compensation cases on behalf of insurers and legal firms, to find out, among other matters, whether it was appropriate that the claimants should continue to receive compensation payments. What part, if any, that experience played in producing his present hostility towards the legal profession, and his obvious deep resentment at having his evidence tested, I do not know. I assumed, perhaps wrongly, that Dr Wirth would have had previous experience as a witness before courts, but he was not asked whether that was so, and it may be that his extraordinary resentment of perfectly proper questioning reflected, merely, a lack of such experience and a naïve belief that his recollection of events which had occurred many years ago, and which he had not made the subject of contemporaneous notes, should be accepted without question, notwithstanding the fact that his initial version of the conversation was at odds with the account given on oath by Ritchie Toomey and was likely to cause considerable distress to the plaintiff and his family.

1354. As I have said, the account initially given by Dr Wirth of the statements made by Ritchie Toomey was for the most part expressed in very generalised terms, and was not repeated in the same way with each telling. Notwithstanding the fact that he said that the account of Ritchie Toomey was, as he said "such a spectacular comment", as not to be forgotten, he conceded that what might have been said, omitting the expletive, was "It could have been me", a very different version, indeed. That alternative version of what Ritchie Toomey may have said is similar to a comment reported by Mr Stephen Moody, one of the ambulance officers who attended the scene where the plaintiff had fallen. Mr Moody said that Ritchie Toomey, who was present at the basement area where the plaintiff lay injured, was very upset when he realised that his brother may have suffered severe spinal injuries, and was particularly anxious that he and Greg Moore had moved the plaintiff so as to administer CPR to him. In the context that he feared that such movement by himself and others may have produced the paralysis in his brother's lower limbs, Ritchie Toomey expressed his anxiety "about what they'd done to his brother". A comment that "It could have been me" might equally be consistent either with a concern by the brother that he might have caused the paralysis, or with an appreciation that he and not his brother might have been the one to have fallen, as much as with the proposition that the brother may have caused the plaintiff to fall.

1357. The likelihood that Dr Wirth's initial recollection of the statement of Ritchie Toomey was simply erroneous gained weight not only by virtue of his own later concession in this respect but from the account of another witness.

1360. Immediately following the evidence of Dr Wirth I heard evidence from a nurse, Ms Rebecca Frede, who was with the plaintiff almost all the time that he was in the Box Hill Hospital, who took careful notes of her observations and whose account of what had been said by Ritchie Toomey was quite inconsistent with that of Dr Wirth. I found her to be a careful and observant witness, and I regard her account as not only being inherently worthy of more credit, having regard to the manner and care with which it was given, but also as being the more likely account of what had been said at the time. Insofar as her evidence conflicts with that of Dr Wirth as to any conversation with Ritchie Toomey I adopt her account and reject that of Dr Wirth. I am satisfied that Ms Frede must have been present at the time of the statements made by Ritchie Toomey in the presence of Dr Wirth.

1363. Ms Frede said that she did not believe that Ritchie Toomey had implicated either himself or the plaintiff as having been involved in the wrestling, but was referring to other persons, and she said that what had been said was consistent with the plaintiff having been knocked off the landing, accidentally, during a friendly scuffle by the other people. Her recollection was that she had been told that the scuffle had spilled out from a flat onto the landing, but could not discount the possibility that she may have been wrong as to the suggestion that the wrestlers had moved out of a flat before the accident. The ambulance officer, Mr Moody, also said that when he attended the scene the various people who were present and who gave accounts of the accident, including Ritchie Toomey, did not suggest that more than one or two person had been involved "playing around stairwell" (as he noted), and that his impression was that those people had been racing up the stairs.

THE PLAINTIFF'S ALCOHOL CONSUMPTION: WAS THE PLAINTIFF INTOXICATED?

1368. The issue of the plaintiff's intoxication was an important one in this case. Counsel for the builder defendants submitted that the plaintiff voluntarily assumed the risk of injury (the concept known in law as "volenti non fit injuria"). Alternatively, it was said that the plaintiff's intoxication, either alone or with that of Moore and Spreadborough, was the sole cause of the accident, and that having regard to the degree of intoxication, and the irresponsible behaviour it produced, the height of the balustrade was not a cause of the accident at all. It was submitted, too, that the extent of the plaintiff's intoxication and his vulnerability to suffering a fall thereby was not reasonably foreseeable by the builder defendants. It was submitted that the plaintiff's evidence and that of Moore and Spreadborough were unreliable by virtue of their consumption of alcohol. Finally, it was submitted that if the defendants were negligent then the plaintiff was guilty of contributory negligence, his intoxication being the major element of his own negligence.

1371. On his admission to Box Hill Hospital the plaintiff did exhibit some signs that were consistent with intoxication, but which equally were consistent with the injuries which he suffered. Whilst he exhibited an impaired consciousness, which might be consistent with significant intoxication, he also was able to communicate sensibly with the doctor and nurse within a short time of his attendance at hospital.

1374. Counsel for the plaintiff contended that the plaintiff was not so severely affected by alcohol as to make that a factor in his accident. The plaintiff's counsel disputed the reliability or accuracy of blood alcohol readings attributed to the plaintiff after the accident, and those wishing to rely on the results of the blood tests were obliged to formally prove that the tests were accurate.

1377. Blood tests were requested by Dr Wirth and a sample was taken at 3.10 am. The sample of blood was divided into three tubes and placed in a sealed plastic bag, together with a form requesting that the pathology department conduct tests, including an ethanol test, to determine his blood alcohol level. At about 4 pm the pathology section reported that the plaintiff's ethanol level was 54 mmols/litre, the equivalent of a blood alcohol concentration of about .25%. If I accept the evidence of the reliability of the test and its result then whatever signs of consciousness and awareness the plaintiff may have exhibited to others on that evening, both before and after his accident, there can be no doubt that he was very significantly intoxicated when this accident occurred.

1380. Counsel for the plaintiff did not concede that the reported blood alcohol result was accurate, and submitted that it was inconsistent with observations made of the plaintiff in the hours both before and after his accident. There was, indeed, a range of evidence which would not seem consistent with the plaintiff having been intoxicated to such an extent as a reading of .25% would suggest. Persons who had attended the buck's night and who had observed the plaintiff's state of sobriety, denied that he had appeared drunk. Those observations need to be treated with some caution, not only because many of the observers had themselves been drinking steadily on the night, but also because some or all of them may have had motives to play down the extent of both their own intoxication and that of the plaintiff. The eighth defendant, Greg Moore, was, and remains, a serving police officer, and all of the drinkers at the buck's function were and remain close friends of the plaintiff; many would feel a sense of guilt for their own part in contributing to the plaintiff's injuries by their own actions or inaction on the night, when rowdy behaviour commenced within their ranks. There would be a powerful motive for friends of the plaintiff to want to support his cause by not emphasising his level of intoxication. Having said all that, the evidence of most of the witnesses did not betray such deficiencies, and some witnesses, such as Timothy Murphy, impressed me very much as being both accurate and reliable in their account.

1383. Mr Murphy, who left the hotel about an hour earlier than the others, said that he had a lengthy conversation with the plaintiff at Uncle Buck's and whilst appreciating that the plaintiff had been drinking (by which I took him to mean was slightly affected) did not detect any sign that he was intoxicated to such an extent as the blood alcohol reading would later suggest. As I said, Murphy left early, and it is possible that any appearance of significant intoxication would have become apparent only later that evening.

1386. There were other observations which do not appear to be consistent with such a high level of drunkenness. The ambulance officer, Mr Stephen Moody, said that when he attended the scene at 2.25am he had been told by observers that the plaintiff had consumed a "large amount of beer". The plaintiff's confusion and irritation might have been caused by intoxication, he thought, but he accepted that his head injury may also have caused those signs. However, he did not detect alcohol on the breath of the plaintiff, nor were his eyes dilated, as may have been expected with significant intoxication. His own Glasgow Coma Scale estimate was that the level of consciousness was relatively high, at 13, and remained so until he was removed to hospital.

1389. Counsel for the second defendant called evidence from those concerned with the collection and analysis of the Box Hill Hospital blood sample, in order to demonstrate that the test result was accurate. Among the witnesses were Mr Bruce Robinson, the senior scientist in the biochemistry department (who had the responsibility for ensuring that all instruments and results were reliable), Ms Mariana Henry (the scientist on duty this night who performed the test by use of appropriate equipment), Dr Glenn Hocking (the deputy director of pathology, who attested to the accreditation and testing processes which had to be met by the laboratory to ensure reliability of test results), and Dr Jabeen Syeda (the doctor who took the sample of blood and who completed the analysis request form). The analysis was conducted by an automated multi-anolyte biochemistry analyser, with the brand name Dade Dimension AR. I do not consider it necessary to discuss that evidence in detail. Having heard that evidence, I am satisfied that the equipment used at Box Hill Hospital was reliable and that the conduct of the test was attended by ample safeguards against contamination or error.

1392. The result of the sample of blood taken at Box Hill Hospital at 3.10 am is also entirely consistent with the result of a separate test of a sample of blood taken from the plaintiff at Austin Hospital later the same morning. The sample of blood taken from the plaintiff at Austin Hospital was analysed by a different machine, an ACA Analyser, but the process was similar to that conducted at Box Hill Hospital. The blood sample was received for analysis at 9.46 am and produced a reading of 32 mmol/litre, the equivalent of a plasma alcohol reading of 0.15%. A further sample received at 6am on 3 March 1996 showed a nil result for alcohol. Once again, having heard the evidence of Dr Young as to the procedures which were undertaken to ensure that the equipment and processes produced reliable results, I am quite satisfied that the Austin Hospital chemical analysis results were not tainted by any mechanical or procedural deficiency.

1395. The recording of 32 mmol/litre for the sample taken at Austin Hospital could have had a variation of plus or minus 3% of the 32 mmol/litre result with a 99.7% degree of probability. There was a statistically small probability that the 32mmol/litre reading might have been plus or minus 5%. Dr Young said that there was a 95% probability that the reading fell within the range of .142% and .152%. Similar statistical probabilities for a plus or minus variation could be applied to the reading of 54 mmol/litre reading at Box Hill Hospital.

1398. Furthermore, in his very helpful evidence Dr Valentine Young, who was head of the Biochemistry Department of Austin Hospital at the relevant time, said that a plasma alcohol reading produces a higher result than would be the case for a whole blood analysis. The increase in the reading as between plasma and whole blood ranges between 10% and 33% higher. Thus, the reading of 0.15% would be the equivalent of about 0.11% if whole blood had been analysed, and if the maximum variation of 33% was allowed. The plasma alcohol reading of 0.25% at Box Hill Hospital would be the equivalent of about 0.20% for whole blood if the same 33% variation was allowed. It is whole blood which is analysed for purposes of criminal proceedings for driving offences.

1401. I heard evidence from Dr Byron Collins, a consultant pathologist, with expertise as to the absorption and elimination rates of alcohol and the effects of alcohol on an individual. Whilst Dr Collins was of the opinion that the reading of .25% at Box Hill Hospital was consistent with the facts presented to him as to the rate and period of the plaintiff's drinking, he also accepted that the serum alcohol reading would be higher than the whole blood alcohol reading would have been, by a factor of up to 1:1.3. Applying that rate to the reading of .25% would produce a reading of about .192%. Mr Philbrick suggested that the reading of .25% should in any event be reduced to .236% having regard to the evidence that there can be a variation by way of increase from the true reading of up to 2 millimols per litre. Thus, taking that variation in favour of the plaintiff (because there could be an understatement, too) would produce a reading of .236% reduced when assessed by the ratio applicable to whole blood, to a level of about .18%. Mr Philbrick then sought agreement from the witness that an additional allowance in favour of the plaintiff should be made by virtue of the fact that if the last drink had occurred some 75 minutes before the blood sample was taken at Box Hill Hospital the alcohol level in the plaintiff's blood stream may have been on the rise to the extent of about .03 to .04%, thus, so it was said, the reading at 3.20 am may have been as low as .13% if whole blood had been calculated and if all of those variation factors were applied in favour of the plaintiff, rather than any factors which might have led to a higher, or the same rate, as that for whole blood when applied to the reading of 25% (in particular if the rate of variation between serum and whole blood reading was applied at 1: 1.1 and not 1: 1.3).

1404. Dr Collins, whilst agreeing to all these possibilities, declined to treat the matter as one capable of precise mathematical calculation. I conclude that it is the probability that at the time when the plaintiff fell his blood alcohol concentration was on the rise so that in any event it was less than .25% serum level and less than the range of about .192% to .20% whole blood. Even allowing for the possible variable factors and applying them always in favour of the plaintiff, however, the probability is that the plaintiff's whole blood alcohol level at the time of the accident was probably in the order of about .15%, and even if it was .13% it was still significantly a factor likely to produce impairment of his reflexes and motor co-ordination skills, and his perception and response to danger, so as to make his intoxication a significant factor contributing to his accident, and in my view the degree of impairment of those responses would not have altered significantly, if at all, if the reading was as high as .20% at the time of the accident. A reading in the order of .13-.15% is probably more in keeping with the quantity of alcohol which the plaintiff drank that night. Certainly, his consumption was not of the order of approximately 20-25 beers which would have been required to reach a reading of .25%. I am satisfied that his rate of drinking was not so great as to lead to the conclusion that the reading of .25% is other than an overstatement of his true concentration, in serum terms, at 3.29am.

1407. Whilst the appearance and behaviour of the plaintiff did not suggest to some observers that he was drunk, rather than suffering the effects of a severe head injury, his state of consciousness as recorded at Box Hill Hospital is not inconsistent with intoxication to a high level.

THE INTOXICATION OF THE PLAINTIFF: VOLUNTARY ASSUMPTION OF THE RISK?

1411. Mr Gillies submitted that the plaintiff had voluntarily accepted the risk of his injury, and that there was no liability for any injury which he suffered. This contention was not strongly pressed, not surprisingly, because to succeed in the defence the defendants bear the onus of establishing that the plaintiff subjectively understood and appreciated the risks which arose by him attempting to move past the wrestlers[56]. The plaintiff has no recollection of the events, and to draw such a conclusion against him would require the drawing of an inference from known facts, but it would be impossible, in my opinion, to infer that the plaintiff knew and appreciated the risk posed by the balustrade, let alone any other risk in the situation, and let alone proving that he voluntarily agreed to run the risk.

1415. There was a myriad of proceedings for contribution and indemnity brought by the defendants as against each other. Claims for contribution are governed by the terms of s.24(2) of the Wrongs Act 1958[57]. That section provides that the court should order contribution against any defendant in such amount as may be held to be "just and equitable having regard to that person's responsibility for the damage". In the course of final addresses counsel identified a number of practical difficulties which they faced in addressing issues of contribution and indemnity, and which, in turn, I would face were I to attempt to resolve those issues as part of these reasons for judgment. Whilst all parties shared my own anxiety that these proceedings should be finally resolved, and as expeditiously as possible, I have concluded that, with some limited exceptions, I should not attempt to resolve these issues without allowing the parties and their counsel the opportunity to first consider the findings of fact and of law that I have made in these reasons.

1418. I did hear extensive, and helpful, submissions on the question of contribution (I heard only very limited submissions as to any questions of indemnity), but as counsel pointed out (and as my findings of fact and law now demonstrate to sometimes be the case), liability of some defendants may be found to have arisen by numerous routes whereas others may have been liable on a single basis only. Counsel noted that some defendants may be liable at common law, some also for breach of statutory duty; some may be vicariously, rather than personally, liable; some may be liable by virtue of positive actions in building a balustrade at an unsafe height, others for omissions in investigating and causing the elimination of any danger which others had created; a finding that HCML knew and deliberately chose to ignore a breach of Code (if made in those terms) might be argued to impose a greater degree of responsibility for the plaintiff's injury than the acts and omissions of others. It was argued, too, that upon analysis of my findings it may be that the damage caused by the acts or omissions of some defendants should be regarded as being different from that caused by the negligence of others.

1421. The issues of indemnity, in whole or part, as between defendants, as distinct from the issue of contribution, likewise could not be finally resolved without parties first considering my reasons and findings. As was noted by counsel, there may well be contractual considerations between parties which have not been addressed before me, and insurance issues may have a bearing, too. Although there are some obvious areas where indemnity issues might arise - such as those affecting Bigridge and its employee Young, or as between Davidson Hughes and HCML - there are a multitude of claims for contribution brought by most, if not all, defendants, as against most, if not all, defendants.

1424. The considerations which necessitate that I allow counsel for the parties the opportunity to make further submissions on questions of contribution and indemnity - after examining my reasons and findings of fact - do not, however, preclude me from making some limited, but relevant, findings of fact as to the respective roles of the defendants. In particular, it is appropriate that I make a finding as to the respective responsibility for the plaintiff's injury borne, on the one hand, by the two wrestlers, Moore and Spreadborough, and, on the other hand, by the builder defendants in totality. I did not understand any counsel to contend that they would wish to reserve their right to put further argument to me on this discrete question after I had published my reasons and findings of fact. I heard comprehensive submissions on this issue and am able to finally resolve this question, the outcome of which is not affected by my findings as to the respective bases of liability of each of the defendants individually.

1427. Counsel for Moore and Spreadborough submitted that any negligence of their clients was substantially less than that of the builder defendants. Their conduct, so it was submitted, was merely inadvertent, careless or incompetent, in contrast to that of the builder defendants whose conduct, so it was argued (perhaps, to varying degrees, individually, but, certainly, when combined), constituted sometimes deliberate, and invariably grossly careless, conduct, sometimes, also, being in breach of statutory obligations. These were parties, so it was submitted, who carried responsibility for ensuring that the balustrade was built to the safe height, and who had the opportunity, knowledge and skill to ensure that it was done.

1430. Mr Curtain QC, senior counsel for Moore, submitted that the standard of care imposed on the builder defendants was akin to the obligation recognised by judges of the High Court[58] as appropriately imposed on employers and occupiers whose negligence placed members of the public at risk of injury from dangers of which they would be unaware. The duty of care imposed on employers required them to take account of the possibility of "thoughtlessness, inadvertence or carelessness"[59] of an employee, and was not limited to employment cases, Mr Curtain submitted, and should be regarded as being equally applicable in instances, such as the present[60], where the possibility of conduct such as that of Moore and Spreadborough should have been taken into account by those responsible for building the balustrade to Code, or ensuring that it was so built.

1433. I accept that the standard of care imposed on parties carrying a duty of care may vary according to the range of circumstances applicable in each instance. In assessing the question of contribution between defendants, in any action involving multiple defendants, some parties may be held to have had a more stringent duty of care imposed upon them than others. In a case where extreme danger existed, for example, the standard of care might impose an obligation to take precautions to protect an injured person even when that person was himself guilty of grossly negligent conduct, but where the person was placed at risk whilst lawfully on the property over which the defendant's duty of care extended.[61] In Podrebersek v Australian Iron & Steel Pty Ltd[62], the High Court held that assessment of the respective responsibility of defendants in contribution proceedings was determined, first, by assessment of the degree of culpability for the accident, that is, the extent of departure from the standard of care of the reasonable person, and, secondly, by evaluation of the relative importance of the acts of the parties in causing the damage.

1436. Notwithstanding the able arguments addressed to me on behalf of Moore and Spreadborough to the effect that the roles of their clients should be regarded as being less responsible for the plaintiff's injury than the combined roles of the builder defendants, I am firmly of a different opinion. The wrestling and the inadequate height of the balustrade can not be distinguished as to their contribution; one factor without the other would have meant that the injury was not caused to the plaintiff.

1439. In my opinion, therefore, the conduct of the two defendants Moore and Spreadborough, together, on the one hand, and the omissions and acts of negligence of the building defendants, on the other hand, were equally the cause of the plaintiff's injury. In other words, Moore and Spreadborough were together 50% responsible for his injuries, and the builder defendants were also 50% responsible as between themselves. For the purpose of this discussion, lest there be any doubt as to this, I ignore the question of the plaintiff's own contributory negligence.

1442. In the course of their submissions it was not contended by counsel for Moore and Spreadborough that - in the event that I held that their clients were liable for the plaintiff's injury - I should differentiate as between their clients when assessing their individual responsibility. In other words, given my finding that the wrestler defendants, together, were 50% responsible for the plaintiff's injury, their individual responsibility might appropriately be assessed at 25%, each. However, that issue was not expressly addressed by counsel and there are contribution proceedings between the eighth and ninth defendants (as well as against other defendants). It may be that after considering my findings of fact counsel for the eighth and ninth defendants would want to address arguments to me on their clients' contribution proceedings as against each other. I will not, therefore, make any finding as to the individual responsibility of Moore and Spreadborough, separately, until I have given counsel the opportunity to be heard on this question, should they wish to be so heard.

1445. Likewise, I have not heard comprehensive argument - informed by my findings - as to whether the various bases of liability of the builder defendants, or any other factors, indicate that it is "just and equitable" that I differentiate between those defendants as to their respective culpability and departures from the standard of care applicable to each of them. Whether the fact that the bases of liability differ between these defendants - in some instances as to the multiplicity of the heads of liability and in some instances as to the characterisation of the relevant standard of care - would lead me to conclude that I should differentiate as to the responsibility of each of the builder defendants to the outcome of the damage suffered by the plaintiff, by virtue of the location of the deficient balustrade, is a matter I will not now resolve.

1448. It may be that upon consideration of my reasons the builder defendants will resolve the remaining contribution and indemnity issues without the need for further submissions and for rulings by me, but if not then I will give appropriate directions for the disposition of those proceedings. In view of the difficulties to which I have already adverted, however, it is not appropriate that I make a finding at this stage as to the respective contribution of each builder defendant, as between themselves, to the damage suffered by the plaintiff.

1452. Although counsel for the plaintiff contended that I should not find the plaintiff to have been guilty of contributory negligence it seems to me that contributory negligence is clearly established. Whilst I do not conclude that the plaintiff's blood alcohol level was as high as .25% at the time of his accident I am satisfied that it was very high and that his perception, awareness of danger, and dexterity would all have been affected at the time of the accident. He must have attempted to pass the wrestling men at a time when he should have been aware that it was unsafe to do so; he did not call out to warn them of his passage; he must have been leaning back against the balustrade in proximity to a drop; he could not have been thinking fast enough to brace himself when the wrestlers conduct threatened to bring them into contact with him. In my view, the plaintiff's own negligence was a significant contributing factor in his accident.

1455. I assess the plaintiff's contributory negligence at 30%.

1460. As a result of his fall the plaintiff sustained quadriplegia that was incomplete below the fifth cervical level and complete below the seventh cervical level. That meant that the plaintiff had normal shoulder function and elbow flexion and had good, but not normal, wrist extension. He had no hand function but had flickers of voluntary movement in the triceps muscle so as to extend the elbow. He had normal sensation over the shoulders and the anterior surfaces of the arm and forearm. He had no sensation in his fingers nor on the inside of his forearm and arms. There was neither sensation nor voluntary movement below his armpits. Thus, his trunk and lower limbs were paralysed.

1463. As a result of his injuries the plaintiff's bowel had ceased to function and whilst at Austin Hospital's spinal unit his bowel was drained by a tube and a catheter was inserted, also, into his bladder which had ceased to function. He was fed through an intravenous line and as a result of the paralysis to his chest and abdominal muscles he developed respiratory problems which required intubation and mechanical ventilation. The severity of his injuries required his admission to the intensive care unit.

1466. The orthopaedic surgeons at the Austin Hospital found that he had suffered fractures to the body of the sixth and fifth cervical vertebrae. A CT scan disclosed haemorrhage into the spinal cord at the level of C6 with other signs at C4/5 to C7/T1 consistent with spinal cord oedema.

1469. The plaintiff underwent a vertebrectomy at C6 and an anterior fusion of C5/6 with bone graft, those operations taking place on 8 March 1996. Several days later a tracheostomy was performed so as to remove him from mechanical ventilation. He developed pneumonia but his condition gradually improved until he was taken off the ventilator and transferred to the acute ward of the spinal injuries unit on 18 March 1996. He remained there until 10 April 1996 when he was transferred to the Royal Talbot Rehabilitation Centre at which time he could sit in a wheelchair but was entirely dependent on staff for his day to day living activities. At the time of his admission to Royal Talbot for rehabilitation the plaintiff had normal shoulder function and elbow flection together with improved wrist extension and a gradually returning elbow extension. He had no finger function and was completely paralysed below his armpits.

1472. The plaintiff was discharged home on 12 August 1996. His nursing regime provided for bowel emptying each two days and a suprapubic catheter was used for the purpose of bladder emptying. The plaintiff had learned to operate his wheelchair and was actively pursuing rehabilitation. He was receiving nursing care six days a week and was exercising daily.

1475. Between May and June 1997 and in April 1998 the plaintiff was admitted to the Austin Hospital for tendon transfer surgery to improve his hand function. Those operations were successful to a significant degree and by June 1998 his condition was regarded as medically and neurologically stable. As a result of the tendon transfer surgery to both right and left hand the plaintiff had an improved grip and pinch grip on both hands, the grip being a little stronger on the right hand than the left.

1478. The plaintiff's paralysis is permanent and he will have no recovery from his present condition. He will remain wheelchair bound and have disruptive bladder and bowel function for the remainder of his life. His capacity for sexual intercourse has been removed.

1481. The C6 fusion was performed using a bone graft from the right hip of the plaintiff. Among the continuing symptoms which the plaintiff experiences are phantom pain in his abdomen, legs and lower back, he has no feeling in his bladder nor his bowels and no control of his bowels, he requires assistance to dress himself and to toilet and to transfer from his bed to his wheelchair.

1484. The plaintiff is in constant danger of developing urinary tract infection because of the artificial tube in his bladder and he is also at risk of pneumonia because of his weakened respiratory muscles. He is in danger of pressure sores and skin breakdown due to his lack of skin sensitivity and the paralysis of his legs. His inability to move his legs creates problems of demineralisation of his bones, causing osteoporosis.

1487. He has a 19 centimetre scar on his left forearm and a 20 centimetre scar on the right arm.

1490. The plaintiff has episodes of autonomic hyper-reflexia which results from a blockage of the catheter. That can produce a red blotchy appearance to his head and neck and low grade infection and is potentially life threatening.

1493. The plaintiff told Mr Michael Epstein in October 1999 that he had become more independent and was able to transfer from his bed to the wheelchair and from his wheelchair to the car. He still required daily assistance from his parents and an attendant carer. He told Mr Epstein that he was aware that his quality of life was diminished but he tried to cope as well as he could and tried to avoid worrying too much about the future, and to be optimistic. At times, however, he felt bleakness and became frustrated with the attitude of people towards him. He tries not to dwell on what he has lost but remain optimistic. In his report Mr Epstein reported that the plaintiff was fortunate to have strong family support and "to have qualities of character which enabled him to manage this devastating injury as well as he has".

1496. Dr Carol Burton, a clinical neuro-psychologist, stated in her report dated 15 November 1999 that the plaintiff had suffered a closed head injury in the fall and had retrograde amnesia of approximately two hours, together with coma and an estimated post-traumatic amnesia of approximately seven weeks. Those findings, together with CT scan evidence of brain swelling, suggested to her that the plaintiff suffered a severe brain injury, but the only residual effects of his head injury were mildly reduced intellectual capacities (with the result that he is now rated average whereas prior to the accident he was regarded as having high average ability) and he suffered fluctuating concentration and reduced ability to organise complex and lengthy verbal material in order to learn to retrieve the information effectively. He had some mild naming difficulties relating to his reduction in concentration and difficulty in retrieving words. Dr Burton said that these deficits were mild but would compromise the efficient use of his intellectual resources and might adversely effect any future studies or employment prospects.

1499. Mr David C. Burke, a consultant physician specialising in rehabilitation medicine, reported on 24 September 1997 that the condition of autonomic hyper-reflexia which had arisen before and was likely to recur was potentially serious because, if unrelieved, the blood could continue to rise to high levels and could result in a stroke or cerebral haemorrhage. The condition could be caused by blockages or twisting of the catheter and once or twice he had suffered the condition when his bowels had become partially impacted.

1502. Mr Burke opined that the life expectation of the plaintiff statistically should be regarded as being slightly reduced because of his disability, but estimated that risk to be, at worst, a reduced life expectancy of 10 percent from normal because of the possibility of developing complications relating to his spinal paralysis.

1505. The impact on the plaintiff's life is enormous. At the time of the accident he was a young man in the peak of physical fitness, within a month of travelling to the USA to compete in world lacrosse championships. He was rated so highly in his sport that there was a good chance that he would have been chosen to captain the side in the future. He had an active social life, with many close friends of his own age who shared his passion for sport. His interests in sport extended to cricket, golf, tennis, running, bicycle riding.

1508. The plaintiff has continued his involvement in sport. After being an assistant coach he last year became the coach of a junior lacrosse team. He has also been active in other fields. He performs voluntary work with the Australian Quadriplegic Association, speaking to students and parents of injured children, and others. He does voluntary work with the association concerned with dog companions for disabled people; he has a Golden Retreiver dog himself, which apart from providing company performs a limited number of tasks for him.

1511. The plaintiff's present routine requires significant support from others. Initially he received nursing care of about two hours three to four times per week, with his mother providing the bulk of assistance otherwise. He requires assistance each morning with bladder and bowel management. His bowel is stimulated each morning, by manual means, by the nurse or his mother. At present he sees a nurse three times per week for washing and showers. Either his mother or the nurse dresses him each morning, and undresses him each evening. He can use an electric shaver and comb his hair. He has his food cut for him. He wears a catheter with a tube connected to his bladder. Not only does the bag, and its need for emptying, inhibit many activities, it is a source of urinary tract infections. The catheter is changed every 12 weeks by his GP. He suffers from pressure sores, and phantom pains; he suffers spasms during the night. If infections continued there is a 50% risk that he will require major surgery - a urostomy, a method to divert urine - later in life. If that occurred he would need to empty his bag every four to six hours, and each day the bag would need to be removed from the abdominal wall by a helper.

1514. He uses a computer, using his thumbs for typing, and has driven a car with special controls since 1997. Getting in and out of the car requires a huge effort. He exercises in a gym made at his home. He lives with his parents - a remarkable couple, whose own lives have changed immeasurably - but would like his independence and his own home.

1517. In his evidence, the plaintiff displayed a remarkable, positive, attitude to his present situation. Whilst that is undoubtedly a genuine reflection of his approach to life I consider that his friend Timothy Murphy, a most impressive and patently honest witness, appropriately expressed caution about too readily concluding that his courage is such that the impact of the losses to the plaintiff are any less severe. A portion of Mr Murphy's evidence demonstrates eloquently the point he was making about suggestions that the plaintiff was very brave. He said:

"I think there's a lot going on though. I think to say that, `Yes, he's very brave and he can move on' would be - I'd feel like that was flippant. He's -he - he's - there's a lot he goes through every day, like even getting here on time or the heat, you - I heard someone describing this court case out the front, that it's like for the lawyers it's probably like maybe they'd make it appear all smooth here, and they're like, it's like a duck on a smooth pond, and but down below they're pedalling furiously, and when I heard that someone say that, and it's out of control behind the scenes, and when I heard someone say that, I thought of Cameron, is that there's so many obstacles I think, trying to pull at him or stop him from moving along, or - but yeah, but on top I think he sees it just important that he keep moving and stay positive and keep people around him, so I've probably gone on a tangent but that's - does that answer your question?"

1521. He was asked: "Yes. Does he, in his quieter moments from what you've observed, do you pick up that there might be difficulties with coping with it all?"

"Yes, yep, it's - I think if I look at my life and I look at him since he's had his accident, his life's tough. It's hard. He's - every morning he needs help getting out of bed, he has to wait till someone's round to get him out of bed, he might fall out of bed at night, and he's got to lie - sometimes he lies there because he doesn't want to wake up his mum who does so much, or - you know, he can't roll over, he - you know, he can't cut his food, he - certain food he can't eat, he - he spends extraordinary amounts of time by himself because as I say, we all go out on weekends and do our stuff, play our golf, play our tennis, and he's by himself. He's - he's under constant pain from various issues that I've learned over time; his spasms, his urinary tract, pains in the necks, I mean it's - I can just say what I see. I mean, I can only try and imagine."

1528. I assess the plaintiff's general damages for pain and suffering and loss of amenities of life at $450,000.

1531. I turn to consider the other heads of damage.

1539. There was agreement as to the loss of earnings of the plaintiff from the date of accident to April 1996, in the sum of $1000. There was significant disagreement as to his loss of earning capacity from that time to the time of trial, and as to any sums which had to be taken into account in reduction from the assessed past loss of earnings.

1542. The plaintiff claimed a loss of $1000 per week, gross, for the period of 256 weeks from 1 June 1996 until 1 May 2001 which after reduction for taxation and Medicare levy would amount to $179,427. That claim was contested by counsel for the defendants who submitted that a reasonable sum would be $390 net per week, a total of $100,620 for 258 weeks (the defendants' figures ran to 15 May 2001) which after allowing for contingencies should be reduced to $95,000, but then further reduced to allow for sums said to have been earned since the accident ($60,096) producing a total due of $35,904. Although these losses are continuing to date of judgment I have taken the loss only up to 15 May 2001 as a matter of convenience, so as to relate my findings to the figures used by counsel. When I allow for contingencies, I will have regard to the fact that this approach slightly undervalues the plaintiff's claim.

1545. As to the claimed loss of income, Mr Stanley, who made the submission on damages for all defendants, contended that the plaintiff's pre-injury employment history and probable avenues for employment until 2001, had he not been injured, were such as to indicate that his earnings would have been much less than that suggested by the plaintiff. If, as the plaintiff asserted, his plans were to have joined the family business, then the business only made a modest profit, Mr Stanley submitted, and it is improbable that he would have earned more than the net sum of $390 per week. If the plaintiff had worked in other fields over this period, then, so it was submitted, he had limited skills and would not have earned any greater sum that that for which the defendants made allowance.

1548. On behalf of the plaintiff, Mr Casey submitted that the defendants undervalued the family business and the capacity which it had - but for the accident - to have provided a significant income to the plaintiff. However, had the plaintiff sought work outside the family business he had skills which would have enabled him to make an income of the order claimed.

1551. The plaintiff left school at age 17 after completing year 11. After leaving school he had worked full time in the family business until July 1992 when he ceased work to take up a sports scholarship to Essex College, Baltimore USA. He was a successful student, being awarded both an All-American award for lacrosse and also an Academic All-American award. He returned to Australia in May 1993, without completing his studies, in order to qualify for the 1994 World Championships. He took work with Micro Arts where he remained employed for 14 months, building computers, and performing stock control and sales roles also. In the year 1993-94 he earned $19,413 with Micro Art, an average of about $370 per week, gross. He left Micro Art in July 1994 to travel to the USA for the 1994 world championships. On his return he took a temporary job for three months as an assistant manager in a gym. He then joined Alloy Computer Products where he remained for 10 months, engaged in sales. His gross salary and commission was worth, he said, $40,000 p.a ($770 p.w. gross).

1554. It is difficult to reconcile the plaintiff's assertion that he was earning at a rate of $40,000 gross per annum with his tax returns. His taxation return for 1994-95 shows a gross income of only $14,329 from Alloy Computers but that is not for a whole year, as his earnings for that year included $4,180 from the gym and $1328 from Micro Arts. The plaintiff said he worked 10 months, only, with Alloy and left in August 1995. The plaintiff did not file a 1995-96 taxation return, but said he included his 95-96 income in his 96-97 return, and that return shows an income of $6,093 from Alloy. It may be that his 1994-95 return represents about eight months employment for Alloy and an income of about $450 gross p.w., but perhaps that understates his gross income somewhat. The plaintiff left Alloy after a disagreement with his employer.

1557. After leaving Alloy the plaintiff went on the dole for three months commencing August 1995. From late in the year he commenced work as a landscape gardener with a friend. For part of that time he was also in receipt of the dole. The income as landscape gardener was in the order of $500 per week gross but he did not work a full week.

1560. In my opinion, that employment history prior to the accident would suggest that his average weekly income was in the order of $400-450, gross, but that figure does not, in my opinion, reflect what income he might reasonably have been expected to earn in the period from May/June 1996 (i.e. after he would have returned from the USA) until today, had he not been injured.

1563. The plaintiff and his parents had planned for the plaintiff remaining in America after the world championships in April 1996. His father's business was concerned with the sale of lacrosse sporting equipment, as the Australian agent for Brine USA. It had been discussed between the parents and the plaintiff that the plaintiff would remain in America for a few months to train with Brine USA in sales and marketing. I am satisfied that the plaintiff and his father had discussed and already taken steps to expand the business into soccer and volleyball equipment upon the plaintiff joining the business on his return.

1566. Mr Stanley submitted that it was probable that the plaintiff's source of income for the whole period from about May 1996 until today would have come from the business, and he submitted that having regard to the taxation returns of the business for that period the profits of the business would have been very low once the plaintiff joined the business, so that having regard to his father's salary, it was unlikely that the plaintiff would ever have earned more than $400 gross p.w. in that period.

1569. In 1996-97 the business had gross sales of $343,941, with a loss of nearly $23,000 after paying wages of $32,000. The gross sales dropped to $274,757 the following year, 97-98, and the loss was $12,064, but wages had jumped to $41,874, an extra employee salesman having been engaged (without any benefit to sales - the salesman being inexperienced and inappropriate, the plaintiff's father said). In 1998-99 there was a turn around, to a profit of $47,224 on gross sales of $332,221 and wages of $20,301 were paid. Of the $41,874 paid in salaries for 97-98 Mr Toomey Snr received $16,700. Of the $20,301 paid in salaries in 98-99 Mr Toomey Snr took $17,850. The estimated gross for 1999-2000 was $300,000, with a net profit of $5000-10,000.

1572. In my opinion, Mr Casey is correct to caution me about placing undue reliance on the taxation returns for this period. It was undoubtedly the case that the plaintiff's injury had a significant indirect effect upon the business, both in terms of the availability of his father to engage in the hours and promotion that might otherwise have occurred, and in the creation of business expenses which would not have arisen had the plaintiff been available to work in the business. Furthermore, I agree that Mr Stanley has adopted an unduly pessimistic view of the likely impact of the plaintiff joining the business and of the expansion into the new fields.

1575. Having said that, it does seem to me that unless the expansion into soccer and volleyball quickly demonstrated that significant profit gains would be made the business would have been struggling to pay two full time employees a substantial salary. If one takes the 98-99 years as a guide, the net profit of $47,224 if added to the salary of Mr Toomey Snr of $16,700 gives a total available sum of about $64,000. (Mr Toomey took drawings each week in the order of $200.) It seems to me that on such figures, assuming that some reserves were to be kept, a second salary of $30,000, at best, was possible, i.e. perhaps a gross salary of $600. For the plaintiff to have reached the figure of $1000 per week very substantial improvement in the business would have been necessary.

1578. Although Mr Stanley was content to accept that the plaintiff would have entered the family business and remained there for the whole period, but for the accident, I do not think that that was likely, at least not if the income of the business did not improve significantly. There were signs that the plaintiff's participation, long term, in the business was not assured. Mr Murphy, a sensitive witness, said that there were tensions between father and son, which did not in any way diminish the love and respect one felt for the other but which caused him to wonder whether the plaintiff would have remained in the business. He said the plaintiff had expressed some uncertainty in that regard. The plaintiff had made inquiries with sporting firms such as Nike and Reebok to see if jobs in sales might be available. Mrs Toomey confirmed the accuracy of Mr Murphy's observation. She said that it would probably have worked for her son and husband to run the business together, but she agreed that they did clash at times. My assessment is that the plaintiff would have continued to explore alternative sources of income, even though his father would undoubtedly have loved him to join and remain in the business.

1581. Mr Stanley submitted that nothing in his background suggested that the plaintiff would have earned a significant income from alternative sources, but I disagree. The evidence of Ms Amanda Dudley an occupational rehabilitation consultant was credible and helpful. Her opinion was that the plaintiff had "fantastic sales capacity, he's got wonderful people skills and great communication skills". That assessment accords not only with my own observations of the plaintiff but also with his record since the accident of being involved in motivational talks and in his interaction with bodies such as those concerned with training support dogs. It accords, too, with the opinions expressed by professionals, such as Ms French and Mr Burke, as to his personality and temperament. Given that he had computer skills, and sales experience I see no reason why he would not have found employment in sales if he decided that the income from the business was inadequate and was unlikely to so improve as to justify remaining in the business. Obviously he would have given time to the business to see if it would grow, and if it succeeded then I think his own income would have grown to a significantly higher gross income than $400-450 p.w. prior to 2001, or else he would have departed to a sales or computer career which paid him a better income.

1584. Ms Dudley was of the opinion that he could, today, have been earning in the range of $80,000 to $100,000 gross as a sales manager, or else $55,000-80,000 as a sales executive, if he had not been injured. Analysis of the possibilities in this area must obviously be treated with caution, and I will adopt a less optimistic approach than that which Ms Dudley considered reasonable. In my view, it would certainly have been the case that he could have earned, and would have expected to earn, not less than $40,000 gross by the end of 1997, in a sales or computer career, and that would probably have risen to an income closer to $45,000 by 2001, and may possibly have been greater. An income of $45,000 gross would be approximately $860 gross per week, but I would have to allow for the factors that he would have been overseas for some of the period 1996-2001 with lacrosse activities; that his income would not have risen to such a figure immediately, and other factors which might have reduced his income below that level. Doing the best that I can, I will assume a gross income on average over the period of $650 per week, or about $405 net at the applicable tax rates until 1 July 2000 and about $507 net at the tax rates thereafter (those rates being disclosed in the report of actuaries Cumpston Sarjeant Pty Ltd, tendered by the plaintiff).

1587. Thus, for the period of 258 weeks his gross income would be $167,700; his net income about $110,000. This figure makes no allowance for superannuation contributions from his employer. Mr Stanley, in his reply to the address of Mr Casey, whilst contending that no allowance for superannuation should be made if the plaintiff was to be largely self employed, seemed to accept that an allowance for employer superannuation contributions should be made (although the submission on behalf of the defendants had not done so), if I concluded that the plaintiff was more likely to be employed in a sales or other capacity. He submitted, however, that the allowance for past and future contributions which the plaintiff sought was far too large. It was accepted that, as was set out in the actuaries' report, that an employers' rate of contributions, gross of tax and expenses was 6% until 1 July 1998, then 7% to 1 July 2000, when it rose, thereafter, to 8%, and in 1 July 2002 it was to rise to 9%. The actuary noted that the contribution applied only to earnings from ordinary hours of work, over-award payments, shift loadings, and also commission. The actuaries' calculations allowed for expenses, taxes and interest with respect to the fund. Based on an assumed gross income of $1000 p.w. the calculation for the value of that contribution up to 1 May 2001 was $35,184. I did not have the benefit of particularly detailed submissions on either side with respect to superannuation, and my analysis of the actuaries' report is a tentative one. I can say, however, that I see no basis for accepting the argument of Mr Stanley that allowance should be reduced by reference to the sums which the business paid the plaintiff's mother, who was a part time employee at times, nor because the profitability of the business was relatively low. As I have earlier stated, if the business was not sufficiently profitable for the plaintiff to be paid at least $650 gross p.w. then I do not consider he would have remained there.

1590. Assuming all other things to be equal, I have calculated an allowance for superannuation based on the ratio of the allowance for gross income which I have assumed ($650) compared with the assumption of $1000 which the actuaries were asked to make, and rounded the figure off. Accordingly, I will allow an additional $22,500 under this heading for past superannuation benefits which were lost.

1593. The total for past loss of earning capacity then is $110,000 plus $22,500, a total of $132,500, which after allowance for contingencies I reduce to $130,000.

1596. I make only a modest reduction for contingencies as I consider that figure is probably slightly low, and already allows, substantially, for contingencies. Additionally, and for convenience, I have used the cut off date of 15 May 2001, but that does not give credit for the number of additional weeks until the date of delivery of judgment, that being the date at which past loss should be calculated.

1599. From that figure must be deducted income derived during that period, and again there is disagreement as to what those sums might be.

1602. After his accident the plaintiff was engaged by Brine Inc, the USA parent company, to design and manage a web site. It paid $A1600 per month for two years, a total of $38,400, but not by way of payments to the plaintiff but by way of credits to the family business for goods purchased. It is clear that that arrangement was made so that the plaintiff might retain the benefit of his disability pension of $199 per week. The plaintiff has accepted that part of that sum, $20,000, should be deducted from the total for loss of earning capacity, but Mr Casey submitted the balance should not be taken into account. Mr Stanley submitted that the whole sum represented earnings of the plaintiff, and it did not matter that there was an arrangement made whereby he did not actually receive the payment himself.

1605. The second item which Mr Stanley submitted had to be taken into account was the sum of $20,696, which is the agreed value of payments made by the family business, Recnal Nominees Pty Ltd, "in kind" to the benefit of the plaintiff over the two years following cessation of the Brine Inc arrangement. The plaintiff received the benefit of a motor vehicle, a mobile phone and free board and lodging, in return for the modest amount of work which he could do in the business (which totalled about 15 hours per week). Mr Stanley said the whole sum of $20, 696 should be deducted, Mr Casey submitted that there should be no deduction at all.

1608. I was told from the bar table, without it being challenged, that the plaintiff will be obliged to repay the Commonwealth, out of his damages award, the full amount he received by way of his pension. The Commonwealth authorities seem to have been fully informed of the arrangements.

1611. If Mr Stanley's contentions are correct, then the plaintiff will be out of pocket, to the benefit of the defendants, in a sum exceeding any benefit "he" gained from Brine Inc or from Recnal over this period. That is so because had he personally received the full payment from Brine Inc, and thus not received any pension in that time, he would have had to allow the full sum by way of deduction from his total sum assessed for past loss of earning capacity, but would have owed no sum to the Commonwealth. Mr Casey submitted that both with respect to the Brine Inc payments and to the Recnal payments in kind I should have regard to the fact that even though the plaintiff was living away from home prior to his accident and would, therefore have had expenses in the nature of board (i.e. rent for his St Kilda flat) and living expenses, he was not costing his parents anything. After his accident, and whilst "working for" Brine Inc his parents' business gained the benefit of Brine payments but also incurred the costs of his board and maintenance. He was able to retain for himself his pension of $199 p.w. in that period, but it is fully refundable. As to his work for Recnal, he was paid no wage but got the use of a car and phone and had free board and keep. Again, he retained his pension, but it is fully refundable.

1614. Mr Stanley's argument is a simple one - i.e. what should be deducted from the sums allowed for loss of income is income actually earned either by payment of money or in kind, whatever the arrangement made as to the manner and the person who receives the direct benefit of the payment or benefit. But if that argument is accepted, the defendants will benefit because they ignore the fact that the plaintiff must make repayments to the Commonwealth, which obligation would never have arisen but for their negligence, and which once taken into account does not in fact understate the benefit which the plaintiff received in cash or kind since his accident.

1617. Mr Casey submitted that the courts have recognised that defendants should not gain the benefit of the voluntarily provided board and keep in such circumstances, even if there appeared to be a double compensation being awarded[63] by virtue of the fact that the plaintiff would have himself incurred living and rental expenses in any event, even if the voluntary provider would not have.

1620. In my view, it is appropriate that the defendants do not gain such a benefit and I accept Mr Casey's argument that one way to ensure that is to reduce the sums deducted with respect to Brine Inc to a total of $20,000 and to substantially disregard the benefits received in kind via the Recnal arrangement, on the basis that those benefits would be valued at about the equivalent of the pension payments, which must be fully repaid. I do, however, make some allowance, for two reasons. First, when making the calculations of the Recnal benefits, on both sides the value to the plaintiff of the telephone which was provided to him was not taken into account, and, secondly, although I consider that the employment of the plaintiff for 15 hours was largely a charitable and rehabilitation exercise on the part of the plaintiff's parents, and that his actual value to the business was minimal, it must have had some value, and once the value of the car, phone and board is taken into account virtually no value is assigned to the plaintiff's work if the total sum allowed is the same as the pension, i.e $199 p.w. Accordingly I will deduct the sum of $5000 as representing the value of his work for Recnal, but disregarding the benefits which have to be repaid to the Commonwealth[64].

1623. There are additional sums to be deducted: $1000 for production of a web site for Mr De Carlo and a few hundred dollars for other jobs, say $1300 total.

1626. I summarise past loss of earning capacity as follows:

Loss of income from 1 May 1996 to 15 June 2001 together with loss of value of superannuation benefits:

GRIFFITHS V KERKEMEYER[65] CLAIM: PAST VOLUNTARY CARE

1633. The next item claimed for past loss is Voluntary care for the period 12 August 1996 to 15 May 2001, 247 Weeks, less 3 weeks when the plaintiff was an in-patient for his tendon transplant operations, a total of 244 weeks. The plaintiff claims 45 hours per week @ $22.75 per hour, the defendant concedes only 40 hours to be appropriate.

1636. The evidence of the amount of volunteer assistance the plaintiff received derives largely from the plaintiff and his mother and also from the report and evidence of Ms French. The plaintiff said his mother worked some 30 to 40 hours per week on his care, and that his father would have provided about another 5 hours.

1639. It would be impossible to overestimate the contribution the plaintiff's parents have made to his life since this terrible accident. A video presentation of a day in the life of the plaintiff vividly portrayed not only the challenges faced by the plaintiff, but also the physical and emotional burden assumed by his parents. It is fair to say that they too, especially his mother, Glenys, live with his injury twenty four hours a day, just as does the plaintiff. In putting an estimate on the number of hours which it is reasonable to allow in damages for the provision of services by them I appreciate how unrealistic it is to allocate the extent to which their lives have become dedicated to his care by reference to whether at any given moment one or other of them is physically performing some activity in his presence, or for his benefit. No doubt when "nothing" is being done for Cameron by his parents, and no value can be put on those moments for the purpose of assessing damages, it would be highly likely that his injury and its aftermath is an ever-present consideration. But just compensation requires that to the extent that this exercise is capable of providing recovery for loss it must relate the loss under recognised and proven headings.

1642. I conclude that it is reasonable to allow 40 hours per week, so that for 244 weeks (taken to 15 May 2001 only) at the agreed rate of $22.75 per hour ($910 per week) the total allowed is $222,040.

1649. On behalf of the plaintiff it was contended that I should calculate the plaintiff's loss of future earnings on the assumption that he would have attained a rate of pay equivalent to a senior manager, in the order of $100,000 p.a. over his lifetime ($1228 net per week), would have worked until 65 years of age and gained superannuation benefits appropriate to such a sum. For the defendants it was contended that the plaintiffs uninjured earning capacity should be assessed for the purpose of calculation as being $400 net p.w., and that he would be self employed and thus have no superannuation benefits.

1652. For the reasons earlier discussed, I consider that it is appropriate to assume that the plaintiff's future would either have been in a business greatly expanded, or else, and more probably, he would have become employed either in the computer field or in sales (or a combination of both). Whilst I have concluded that his income would have risen to about $650 gross to date, I consider it highly likely that he would have increased his earnings well beyond that level within a few years. A sum of $1200 gross per week - $62,400 p.a. ($860 net per week) - seems to me to be an appropriate one which recognises the skills which the plaintiff had and his probable income path. Using the multiplier of 1097.7, which provides for 3% discount, supplied by the actuaries, the total comes to $944,022.

1655. In addition, allowance for superannuation must be made, in my view, for reasons earlier discussed. The employer's contribution rate from 1 July 2002 is 9% and 8% before that date. Applying the actuaries' calculations on the net of $860 rather than the net of $1228.80 which counsel for the plaintiff stipulated, but assuming that all other factors would remain equal, the plaintiff' loss of superannuation benefits would total $137,006.

1658. The total future loss of earning capacity would then be $1081,028. This figure requires adjustment for contingencies and for the plaintiff's residual earning capacity. The plaintiff's counsel allowed a total reduction of 20% for contingencies and for future earning capacity. Counsel for the defendants submitted that the plaintiff's future earning capacity should be assessed at 25%, in other words, the calculated loss of future earning capacity should be reduced to 75% of the total. Furthermore, then a further reduction of 7.5% for contingencies should be made.

1661. I will deal first with the question of the plaintiff's future earning capacity. The plaintiff is a remarkably optimistic man, with a determination to succeed at whatever he tries, and a willingness to persevere and to put up with, but not be defeated by, disappointment. He has pursued coaching, conducted counselling and made speeches, he has travelled interstate in connection with the dog program. He has travelled overseas several times since his accident. He has skills with computers which he has used since his injury, and has earned some income. There is no doubt, however, that he was offered that work by persons who were sympathetic to his plight and anxious to do what they could to maintain his spirit and motivation. His future employment prospects are unlikely to offer many instances of such generosity. There are enormous difficulties facing his efforts to gain paid employment.

1664. Not only does the plaintiff have the very severe physical injuries which I have discussed, he has also suffered brain damage. Dr Burke said that he was capable of sedentary employment, probably with computers, but it was doubtful that he could work away from home, and the range of vocations in which he could hope to gain employment had been significantly reduced. He regarded the plaintiff's self assessment as being very realistic, namely that it would be near impossible for him to travel to and attend a place of employment, that he becomes very tired and has bowel problems which the plaintiff said meant he could realistically offer an employer only part time casual computer work, from home, and that it would take him a lot longer than able bodied persons to do any work assigned to him. He told me that the computer tires him and it is not something he would want to do for long periods, anyway. Mr Murphy's assessment of his friend was that he would probably prefer to work in areas such as with the dogs or in counselling, and if in computers then in web design. He did not see much likelihood of the plaintiff working in the family business to any extent. Dr Burke said that the neuropsychological assessment of his brain injury suggest that that is a significant factor, and was a significant factor in his level of fatigue. He said that that injury alone was such that even if he did not suffer quadriplegia the plaintiff would in any event be facing difficulties in finding work that he could perform.

1667. Occupational rehabilitation consultant Amanda Dudley said that he faced many barriers to employment, including the fact that employers would not make the allowances he would require. She did not think the family business was a viable long term option for him, and thought he could not work away from home. Whilst she concluded that he might be capable of working for up to 25 hours in a week, that would be an irregular occurrence. She said that she found it very hard to identify any work that he might be able to do; even his computer skills and training were limited.

1670. In my opinion, it is completely unrealistic to assess the plaintiff's retained earning capacity as representing 25% of the sum assessed as representing his loss of his future earning capacity. In my opinion, it is more like 10%.

1673. In Lindhe v Royal Children's' Hospital[66] I discussed, in some detail, the application of the High Court's decision in Malec v Hutton Pty Ltd[67], still the leading authority on the application of contingencies. In the present case there are a multitude of contingencies, some favourable to the plaintiff's employment and health prospects, some not. In addition to the ordinary vicissitudes which all persons face there are additional ones the plaintiff faces. He has a reduced life expectancy by virtue of his quadriplegia, which Mr Burke assessed as being, at worst, a 10% reduction in his normal life expectancy. He faces the risk of infections which are potentially life threatening (those being taken into account in the 10% estimate of Mr Burke). His working life, assumed to be to 65 years, might have been cut short. Even the plaintiff's sporting interest might have impacted on his future employment prospects; he may have travelled overseas often, thus disrupting his career; he may have been injured on the field. On the other hand, he may have succeeded in the family business in a way his father had not. His particular personality and enthusiasm, plus the sort of dedication to excellence and to training which made him excel in sport may have led him to a stellar career in sales or otherwise. These are just a few of the multiplicity of contingencies which would have relevance.

1676. All things considered, I consider it appropriate to reduce the sum which I have calculated by 15% for vicissitudes and by another 10% for retained earning capacity, a total reduction of 25%.

1679. The sum allowed for loss of future earning capacity, therefore, is $810,771.

1683. The areas of dispute between the parties as to this head of claim are not substantial, and relate more to the question of contingencies and the weight that I should attach to the various imponderables of the plaintiff's life.

1686. Counsel for the plaintiff submitted alternative calculations based on different assumptions as to the deterioration of the plaintiff's condition at or about the age of 50 years. Mr Stanley, making submissions for all the defendants, submitted that it was inappropriate to calculate the damages in that manner because it takes as certain that the deterioration will occur, and that it will occur at 50 years of age. He submitted that the appropriate course was to use the one calculation but to then have regard to the prospects of deterioration. I think that, notionally, the approach suggested by Mr Stanley is a more appropriate approach to adopt in the exercise of assessment of such damages when the questions of future prospects, favourable and unfavourable, can not be confidently assessed.

1689. As earlier discussed, I consider that it is reasonable to assume that the plaintiff's parents provide support in the order of 40 hours per week. The plaintiff contended it should be 45 hours. Counsel for the defendants have not challenged a 40 hours assessment as being reasonable. Will the plaintiff's needs for care increase, decrease or remain static? On the one hand, Ms French contemplated the possibility of there being less need for attendant care in certain areas, if it proved to be the case that the plaintiff, by practice and perseverance, learned to perform some tasks for himself that require assistance at present. The sort of items included showering, drying himself, and moving himself to and from the shower. If the improvement occurred he might reduce the amount of assistance required from 1.5 hours on non-bowel mornings, to half an hour, and from 2.5 hours on bowel mornings to one hour. Ms French's report was written in August 1998, and it did not appear to me that the improvement had in fact occurred that she anticipated might be possible.

1692. Mr Toomey is determined to do whatever he can to stay fit, but the evidence of Mr Burke suggests to me that the more probable course is that his condition will deteriorate in future. Mr Burke, a highly experienced rehabilitative surgeon, with specialist experience of the treatment of quadriplegics and paraplegics, pointed to the risk of arthritis developing in the shoulders, due to overuse in a wheelchair. He discussed also the condition of autonomic hyper-reflexia and the serious complications which it can produce, and also the likelihood of infections and complications therefrom. Mr Burke said that the deterioration of shoulders was quite common for persons with his condition. Mr Burke had examined the plaintiff's claims for attendant care and agreed with his claims for what he would need once he lived independently of his parents, and said there would be a need not only to retain the amount of services his parents provided but there would be an increased need for attendant care. He said that the plaintiff's expectation of life was reduced, but only "slightly", and having regard to the risks of his life being cut short by virtue of such matters as urinary infections, renal failure, complications of spinal paralysis, and other matters, he assessed the reduced expectation of life as being "at worst" ten percent.

1695. As Mr Stanley pointed out, it may be that the plaintiff will develop a permanent relationship and have a live-in partner, who might take over some of the household tasks presently provided by his parents or helpers. Since his accident the plaintiff has had two relationships, one of which ended after a period in excess of a year, and a more recent and continuing relationship, but where the woman concerned lives interstate. I do not consider that this prospect should be ignored; it is one contingency which, among others, requires some allowance.

1698. In my view, the risk of future deterioration is a significant one and must be given weight, but whether it will occur at 50 years or later (or even earlier, given the considerable exercise regime and determination of the plaintiff to engage in as much physical activity as possible) is very difficult to estimate. Having regard to the fact that the 10% reduction in life expectancy estimated by Mr Burke was his highest risk estimate and having regard to the fact that I would expect there to be deterioration, I consider that the appropriate approach is to calculate the future care needs and then reduce them for contingencies by only 5%.

1701. The figure for weekly costs accepted by the defendants (and it seemed to not be disputed by the plaintiff's counsel that that figure of weekly costs was appropriate, when allowance was made for some reductions which Ms French agreed were appropriate) was $838.54 and applying the agreed multiplier for a male aged 30.6 years to death, of 1289.7, the total for future care would be $1,081,456, which is reduced by 5%, to be $1,027,391.7. In addition there must be added the agreed sum of $1200 for occupational one-off expenses. The total then, to nearest dollar, is $1,028,591.

1705. Once again, the plaintiff's counsel made calculations based on a change in the situation at age 50. Thus, based on items allowed for by Ms French the plaintiff claimed weekly costs of aids and equipment of $150.95 until age 50 and $186.62 thereafter. Counsel for the defendants did not contest most of the items but did dispute that allowance should be made for certain items.

1708. First, as to a mobile telephone, it was not disputed that the plaintiff will need one, but it was submitted that had he not been injured he would have used one anyway. That seems to me to be probably so. The defendants contended that the weekly allowance of $15.15 for the phone should be deducted, and also the costs of a handset of $65. I do not dismiss this, wholly, as an expense attributable to the accident, however. It seems to me that I should make some allowance for the fact that a mobile phone has now become a vital necessity, and that use of a mobile is likely to be greater, in comparison to the situation which would have pertained but for the accident.

1711. The provision of a reclining lounge chair, in my view, is a reasonable claim, not an "ideal" claim in the circumstances. The items, "night splints" do not appear to be used at the moment and should not be allowed. I see no reason why allowance for a pushbike and gymnasium equipment should be regarded as cutting out before death. Likewise, I see no reason to disallow the claim for a sports wheelchair, which seem reasonable given that the plaintiff and friends do use a chair for exercise.

1714. The appropriate way to address this claim is to make an allowance after first allowing under contingencies a reduction for the risk of reduced life expectancy. Applying the figure of $150.95 per week to the multiplier of 1289.7 being the appropriate 3% multiplier for a male of 30.6.years, the figure is $194,680, which I reduce by 5% to $184,946. I would further reduce that sum to allow for items which I have rejected, to $175,000.

1718. The plaintiff claims $283,347 being the additional costs of independent accommodation caused by virtue of his physical condition. The defendants contend that the figure should be $208,135. There are three disputed items which make the difference.

1721. The expert evidence called by the plaintiff's witness, Ms Kirsty Bennett, was generally accepted by Mr Jeremy Long who was called for the defendants. Mr Long is himself confined to a wheelchair and might be thought to have particular insight into the areas of dispute, but I was not persuaded that his evidence was to be preferred on that account over that of Ms Bennett.

1724. As to the first items of dispute, Mr Long said that too much space had been allowed for the plaintiff's needs for a gym, store area, home office/study. Mr Long suggested that the 30 square metres could be reduced to 20. Mr Long also challenged the size of the laundry, and suggested it be reduced by 3 square metres. Ms Bennett said that she had applied Cordell's Building Cost Guide, Victoria, and said that she was not overgenerous in this allowance of space, and having heard her detailed explanation I accept that what she allowed was reasonable. In particular, Mr Long agreed that he had adopted an approach of not requiring adherence to the standards for circulation space recommended by the relevant Australian Standards. He thought a lesser circulation space might be achieved, but I see no reason why the specialist standard should not be followed. Mr Long also agreed that he had not been told what gym equipment was being used, and agreed that he had not allowed for the amount of equipment which was likely to be housed in the gym.

1727. Mr Long considered that when allowance was made for the cost of a conventional home, Ms Bennett had not allowed for the extent to which space would be provided by a conventional home. Ms Bennett had taken her figure of 119 square metres from Cordell's Guide, whereas Mr Long said the conventional home was more like more like 149 square metres, including garage/carport. He based that conclusion on looking at advertisements in the newspaper. It seems to me to be reasonable to use an industry guide such as Cordells and to apply its standards, throughout, as was done here, unless it can be shown to be inaccurate on any item. In my view, the approach adopted was reasonable by Ms Bennett.

1730. The final areas of difference related to individual items. As to a dishwasher and microwave neither were allowed for in Cordell's standard home, and it was appropriate for Ms Bennett to claim those. I do agree with Mr Long that acoustic treatment goes beyond reasonable compensation when it was to be applied in areas where there was already carpet, but Ms Bennett adjusted that claim in her final report. I considered the claim for wall protection was reasonable, but for the reasons given in his report I accept Mr Long's contention that the door protection is not required when sliding doors are being fitted (a reduction of $8400). I accept that a cheaper home security system could be fitted than that claimed and reduce the claim by $5000.

1733. The claim for hydronic heating is predicated on the need to ensure that the plaintiff avoids respiratory complaints. It would provide a high quality of air. Mr Long assumed that this heating was to be installed in addition to air-conditioning, but Ms Bennett said that was not so. The higher quality air, she said, was an important factor when a person was going to spend an abnormal amount of time indoors, and that seems a reasonable claim. Mr Long said this was the "Rolls Royce" of heating, but notwithstanding that comment it seems to me to be not an excessive item having regard to the special needs of the plaintiff.

1736. Mr Long said the claim based on a full brick house was unreasonable. Applying a different industry guide, Rawlinsons, he said that the cost for brick in comparison to brick veneer was an additional $45 per square metre, not $94 as claimed. Ms Bennett said she used the Cordells guide but in fact had reduced the figure to $67 in her final report, and Mr Long appeared to accept that as reasonable.

1739. Finally, there were some external items, none of which seemed to me to be unreasonable.

1742. In the result, I would reduce the claim for the housing needs by $13,500. The total, then, is $269,847.

1745. In addition, the plaintiff claimed maintenance costs of $36.06 per week. Mr Stanley contended that if I disallowed the electrical items, above, then the proportion of cost of that should be reduced, but I have not disallowed those items. I accept that painting, as a maintenance item, is a normal household expense, but it is not one that the plaintiff would now be able to meet himself. Some reduction from the claim should be made, however. He suggested a 50% reduction, but given the calculations made by Ms Bennett in her report, and making allowance for the fact that the plaintiff can make no saving by doing his own painting, I think 40% is appropriate. I will allow 5% for contingencies.

1748. For maintenance I will reduced the claim of $46,507 to $27,904, which I will then reduce by 5%, to $26,609.

1753. The first item claimed under this heading was for a cost of $150 per week with respect to the attendance of Royal District Nursing Service staff. Mr Stanley submitted that the role of these nurses was already taken into account in the Griffiths v Kerkemeyer claim, which relied on the information provided by Ms French who took the hours of these nurses into account in calculating the plaintiff's future needs.

1756. Upon re-reading, the evidence is not entirely clear as to this, but on balance I think Mr Stanley is correct. Certainly Ms French both in her report and evidence expressly referred to the duties of the nurses who attended for the important morning routine. Although that service is not being paid for at the moment it will be charged for hereafter if the plaintiff succeeds in his claim for damages. It is for the plaintiff to establish his loss[68] and I am not persuaded that this loss has not already been provided for elsewhere in his claim.

1759. As to the balance of items for future treatment, first, the defendants argue that only six visits per annum to Dr Crick should be allowed, not eight as claimed. Dr Crick attends frequently on the plaintiff for catheter changes and for attendances for infections. He charges $50 for home visits. It seems to me that his attendance rate at the moment justifies a claim for eight visits per year, and I will allow that. That is $400 p.a. or $7.65 per week.

1762. The defendants agreed to the claim of $25.60 per week for annual reviews at Austin Hospital, , pathology for urine and blood tests, urea and creatine blood tests, reviews at the spinal clinic and by a urologist.

1765. The defendants agree to an allowance of $4 per week for medication.

1768. The total allowed, then for recurring future medical expenses is $37.25 per week. The multiplier for life is 1289.7, giving a total of $48,041. I will reduce that by 5% for reduced life expectancy, to $45,639.

1771. The defendants concede the plaintiff's claim for $20,000 representing a one-off claim for the risk of future operative treatment and reviews other than those provided for.

1774. Thus, the total claim for future medical and like expenses is $65,639.

1778. I summarize the damages which I have allowed as follows:

[diamond] Griffiths v Kerkemeyer Claim - past voluntary care

[diamond] General damages (Pain and Suffering, etc)

1782. Subject to any submissions by counsel as to the appropriate orders to be made, having regard to my findings of fact, and as to an award of interest, which has been claimed, the plaintiff will be entitled to judgment as to 70% of this sum ($2,248,259) as against all defendants.

1785. Save to the limited extent that I have earlier discussed - allocating responsibility for the plaintiff's damage equally between the wrestling defendants, on the one hand, and the builder defendants, on the other hand - I have not sought to make any determination as between defendants with respect to any claims between them for contribution and indemnity, nor have I disposed of such third party claims as remain for resolution (I made an order at the commencement of the trial adjourning a third party claim involving CIC Insurance Ltd). If agreement is not reached on these matters, following publication of these findings and reasons, then I will give appropriate directions for the disposition of any of these proceedings which require determination.

1788. I will hear counsel as to interest and costs and as to appropriate orders to be made.

[1] O'Connor v S.P. Bray Ltd [1937] HCA 18; (1937) 56 CLR 464, at 477-9.

[2] O'Connor v S.P. Bray Ltd, supra, at 485.

[3] See Darling Island Stevedoring & Lighterage Co Ltd v Long [1957] HCA 26; (1957) 97 CLR 36, at 53, per Webb J.

[4] O'Connor v S.P. Bray Ltd, supra, at 479.

[5] Downes v Williams [1971] HCA 45; (1971) 126 CLR 61, at 75, per Windeyer J.

[6] Stoneman v Lyons [1975] HCA 59; (1975) 133 CLR 550.

[7] Stoneman v Lyons, supra, at 569, per Stephen J.

[9] Dennis v Vickers Ruwolt Pty Ltd [1967] VicRp 97; [1967] V.R. 775, at 776-7.

[10] Voli v Inglewood Shire Council [1963] HCA 15; (1963) 110 C.L.R. 74, at 84.

[11] March v Stramare [1991] HCA 12; (1991) 171 CLR 506, at 515 per Mason C.J.

[12] Colonial Mutual Life Assurance Society Ltd v Producers & Citizens Co-operative Assurance Co of Aust Ltd [1931] HCA 53; (1931) 46 CLR 41, at 48, per Dixon J; Elliott v Bickerstaff [1999] NSWCA 453; (1999) 48 NSWLR 214, at 236, per Giles J.A.

[13] Elliott v Bickerstaff, supra, at 236, per Giles J.A.

[14] Pyrenees Shire Council v Day [1998] HCA 3; (1998) 192 CLR 330, at 377, per Gummow J; State of Victoria v Richards, [1998] VSCA 103.

[15] Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40; Sutherland Shire Council v Heyman [1985] HCA 41; (1985) 157 CLR 424; Bryan v Moloney (1995) 182 CLR 609.

[16] Pyrenees Shire Council v Day, supra, at 377, per Gummow J.

[17] Burnie Port Authority v General Jones Pty Limited [1994] HCA 13; (1994) 179 CLR 520, at 550-551, per Mason C.J, Deane J, Dawson J, Toohey J, Gaudron J.

[18] See Bryan v Moloney, supra; Zumpano v Montagnese [1997] 2 VR 525, at 553; Hawkins v Clayton (1988) 164 CLR 539, at 578, per Deane J.

[19] Jones v Bartlett [2000] HCA 56; (2000) 75 ALJR 1.

[20] Jones v Bartlett, at par [215], per Gummow and Hayne JJ.

[21] As discussed, for example, in cases such as Jaensch v Coffey [1984] HCA 52; (1984) 155 CLR 549; Gala v Preston (1991) 172 CLR 24, at 252-3, Burnie Port Authority v General Jones Pty Ltd [1994] HCA 13; (1994) 179 CLR 520; see too the statement of Dawson J in Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313, at 343, and that of Gummow and Hayne JJ in Jones v Bartlett, at par [215].

[22] Jones v Bartlett, at pars [173]-[175].

[23] Written submission of Tenth Defendant, par 22, citing Gleeson CJ in Jones v Bartlett, supra, at par[22].

[24] CML Assurance Society Ltd v Producers and Citizens Co-operative Assurance Co [1931] HCA 53; (1931) 46 CLR 41, at 46-7, per Gavan Duffy CJ and Starke J.

[25] Scott v Davis (2000) 74 ALJR 1410, at pars [53-54], per McHugh J. and at par[34], per Gleeson CJ.

[26] Stoneman v Lyons [1975] HCA 59; (1975) 133 CLR 550, at 569 and 578.

[27] Bryan v Moloney, supra, at 628, 640.

[28] Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313.

[29] Jones v Bartlett [2000] HCA 56; (2000) 75 ALJR 1, at 39, par [233].

[30] Mt Albert Borough v Johnson [1979] NZCA 46; [1979] 2 NZLR 234, at 240-241.

[31] Zumpano v Montagnese [1997] 2 V.R 525, at 544; 553.

[33] Anns v Merton London Borough Council [1977] UKHL 4; [1978] AC 728.

[34] Sutherland Shire Council v Heyman [1985] HCA 41; (1985) 157 CLR 424.

[37] Burnie Port Authority v General Jones Pty Limited [1994] HCA 13; (1994) 179 CLR 520, at 550-551, per Mason C.J, Deane J, Dawson J, Toohey J, Gaudron J.

[38] Kondis v State Transport Authority [1984] HCA 61; (1984) 154 CLR 672, at 687.

[39] Burnie Port Authority v General Jones Pty Limited at 551, per Mason C.J, Deane J, Dawson J, Toohey J, Gaudron J.

[40] Scott v Davis (2000) 74 ALJR 1410, at par [248].

[41] Kondis v State Transport Authority, at 687.

[42] Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313, at 343.

[43] Jones v Bartlett [2000] HCA 56; (2000) 75 ALJR 1.

[44] As suggested in Zumpano v Montagnese, supra, at 548, per Tadgell and Phillips JJ.A).

[45] Jones v Bartlett, supra, at 28-30, par [170] to [182].

[46] Jones v Bartlett, supra, at par [188].

[47] Zumpano v Montagnese, supra, at 544.

[48] Jones v Bartlett, supra, at 6, par [23]-[24].

[49] Jones v Bartlett, par [20]; See too, Zumpano v Montagnese, supra, at 548.

[51] Per Dawson J, at p 343, in Northern Sandblasting and per Gleeson C.J, at par [56] in Jones v Bartlett.

[52] Australian Safeway Stores Pty Ltd v Zalzuna (1987) 162 CLR 479, as observed by Gaudron J in Jones v Bartlett, at par [92].

[54] Chapman v Hearse [1961] HCA 46; (1961) 106 CLR 112, at 120; Mount Isa Mines Limited v Pusey [1970] HCA 60; (1971) 125 CLR 383.

[55] March v Stramare [1991] HCA 12; (1991) 171 CLR 506, at 515.

[56] Insurance Commissioner v Joyce [1948] HCA 17; (1948) 77 CLR 39.

[57] It was submitted by counsel for Davidson Hughes that Division 2 of the Building Act 1993 applied to this action, so that each defendant could have judgment entered against him/it only to the extent of the proportion of responsibility determined against each defendant. I reject that contention. In my view, the present action is not a "building action" to which ss.130-132 of Division 2 have application.

[58] See Bankstown Foundry Pty Ltd v Braistina [1986] HCA 20; (1986) 160 CLR 301, at 308-9, per Mason, Wilson and Dawson JJ; Bus v Sydney County Council [1989] HCA 29; (1989) 167 CLR 78, at 90, per Mason C.J., Deane, Dawson and Toohey JJ.

[59] Bankstown Foundry Pty Ltd v Braistina, supra, at 309.

[60] The fact that the standard of care in the Bankstown Foundry case equally applied to cases other than employer/employee situations was noted by McHugh J. in Jones v Bartlett [2000] HCA 56; (2000) 75 ALJR 1, at 17, Par [105]; see, too, Kirby P. in Brady v Girvan Bros Pty Ltd (1987) NSWLR 241, at 245.

[61] See Nagle v Rottnest Island Authority [1993] HCA 76; (1993) 177 CLR 423.

[62] Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59ALJR 492, at 494.

[63] See Liffen v Watson [1940] 1 K.B. 556, and the discussion of the effect of Johns v Purnell [1960] VicRp 35; [1960] VR 208 in Luntz, Assessment of damages: 3rd Ed, at par [8.3.20].

[64] This approach seems to me to be in general accord with the treatment of pension entitlements as discussed in Luntz "Assessment of Damages", 3rd Ed, par [5.3.5].

[65] Griffiths v Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161.

[66] Lindhe v Royal Children's Hospital, unreported 28 August 1992, at 77.

[67] Malec v Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638, at 640, per Brennan and Dawson JJ.

[68] See Watts v Rake [1960] HCA 58; (1960) 108 CLR 158, at 159, per Dixon C.J.