37 In the circumstances, it is unnecessary to consider Zahner's negligence claim against Andreas. If it succeeded and (as seems clear) he was contributorily negligent, his negligence claim would entitle him to less than the damages he is entitled to for Andreas' breach of statutory duty, which by s 7 of the Law Reform (Miscellaneous Provisions) Act 1965 is not affected by Part 3 of that Act.
38 Zahner's negligence claim against Boral was based on the proposition that it owed him a duty of care, similar if not identical to the duty that it would have owed to an employee instructed to dismantle the scaffolding, to ensure that the scaffolding was safe for that purpose.
39 The trial judge accepted Boral "was under some duty" to Zahner, "for example a duty not to send him deliberately into a situation of danger known to it but unknown and unknowable to him". Although sometimes seeming to dispute that it owed Zahner any duty of care, Boral appeared to accept the trial judge's approach, which it described in its written submissions as "impeccable". Its final position was that, in the circumstances, its duty to Zahner did not oblige it to ensure that the scaffolding was safe for dismantling.
40 The trial judge noted Zahner's concession "that he examined the scaffolding and was aware of the risk, common in the industry, that the scaffold may have been altered by the tradesmen using it to facilitate their own endeavours. Importantly he agreed that he knew it was 'most essential and critical that as the scaffolder contracted to dismantle the scaffold, [he] had to be extremely careful to inspect it to ensure that it had not been modified by pieces having been taken out and not replaced'." On Zahner's case in this Court, the absence of any reference by Boral to the risk which Zahner knew existed was irrelevant. A warning of the risk was not necessary and would not have been sufficient. According to Zahner, Boral's duty was to ensure that the scaffolding was safe for dismantling.
41 However, the steps necessary to make the scaffolding safe for dismantling were part of the task for which Boral engaged Zahner. Both parties knew that the scaffolding might be unsafe, Boral lacked knowledge that the scaffolding was unsafe and the dismantling was a routine task for a skilled and experienced scaffolder such as Zahner. Boral was not obliged to employ or engage one scaffolder to make the scaffolding safe for another scaffolder, Zahner, to dismantle.
42 In summary, Zahner's appeal against Boral should be dismissed with costs but his appeal against Andreas should be allowed with costs, the judgment in favour of Andreas against Zahner should be set aside and judgment should be entered for Zahner against Andreas for damages and costs.
43 I agree with Grove J that, for the reasons given by his Honour, the amount to which Zahner is entitled for damages and interest is $271,149.70.
44 GROVE J: I agree with the orders proposed by Fitzgerald AJA and with his Honour's reasons in relation to liability.
45 The trial judge assessed Zahner's damages at $228,149.70 and calculated interest at $14,000.00. Zahner submitted that the amount assessed for general damages was manifestly inadequate and should have been $135,000, not $75,000, with an adjustment for additional interest, and that future medical expenses should have been assessed at $15000, not $2000, which included "… no allowance for the possibility or likelihood of future medical treatment, pharmaceuticals, surgery and associated expenses."
46 Zahner did not dispute the trial judge's findings in relation to damages, which were as follows:
"The plaintiff was born on 25 June 1950 so that he was 29 at the time of the accident and is 49 now. During the 1960's he undertook a 12-month course to become a ticketed scaffolder and in 1968 he obtained a Class 1 scaffolding certificate becoming a leading hand at about that time. In 1974 he completed a Class 1 rigger's course and qualified as a dockman. He was, as I have already observed an expert diver and at the time of the accident he was conducting a business of scaffolding and salvage.
At the time of the fall he sustained a posterior dislocation of the bones of his right forearm, a fracture of the right inferior pubic ramus, a comminuted fracture of the right calcaneum and fractures of the right scaphoid and lateral tibial plateau. He was off work completely until 22 April 1980. Having regard to the seriousness of his injuries his return even in a limited capacity at such an early date is commendable. The plaintiff claims complete wage loss equivalent of the average net weekly wage for those 11 weeks and this is calculated in an amount of $3,135. In truth the plaintiff continued to conduct his business in which he employed Messrs Skelly and Jesse. It is impossible on the evidence to tease out his precise actual loss for this time. Likewise the period between his resumption of activity as an independent contractor in April and his commencement as an employee of Boral in November 1981 defies calculation in respect of any economic loss. It is noted that in respect of this period the plaintiff makes no claim.
Between 16 November 1981 and 19 June 1987 the plaintiff was employed by Boral as a scaffolder and during this time he performed the full range of activities required of a scaffolder although he claims that he exhibited a limp at all times and was less steady and less confident working at heights. He makes no claim for economic loss in respect of this period.
In 1987 the plaintiff resigned from Boral, moved to the South Coast of New South Wales and took on work initially as a carpenter and later as a contract layer of concrete blocks. The plaintiff's evidence is that he resigned from Boral because he had come 'to the end of his tether' and could no longer stand the continuing pain and disability resulting from the accident. I am prepared to accept that the plaintiff's continuing discomfort and disability was a factor in his decision to resign but it was not, in my view, the sole or even the major reason for his decision.
For some years prior to October 1984 the plaintiff had owned and resided in premises at 8 Elgata Close, Bradbury. In October 1984 he leased this property and went to live with his then companion, Ms Sandra Tittle. From time to time he resided also with his mother and in about 1986 Ms Tittle moved to the South Coast, Sanctuary Point. The plaintiff went on weekends and stayed with Ms Tittle while he continued to work for Boral but ultimately he resigned and went to live full time at Sanctuary Point. Clearly part of his motivation for resigning from the employ of Boral would have been his desire to avoid commuting and his desire to take up full time cohabitation with Ms Tittle. Thereafter whilst at the South Coast the plaintiff worked as a carpenter and his income was certainly less than he would have enjoyed had he remained in the employ of Boral. During this time he built a house and then took up the concrete block laying job. This job requires him to handle 25 kilogram blocks of concrete and whilst he says that this is done mainly on a level surface such as a concrete slab it requires him to move around construction sites and to exercise the considerable strength and dexterity required to lay these blocks.
Dr Searle who expressed a very guarded assessment of the plaintiff's capacities and a rather gloomier prognosis than is reflected in the opinions of other doctors was nonetheless not aware that the plaintiff had engaged in this concrete block laying work for now nine years or more. Some reflection is cast upon Dr Searle's opinion because of his incomplete knowledge of the capacity actually being displayed by the plaintiff but by and large there is not a great deal of dispute amongst the orthopaedic specialists concerning the level of the plaintiff's physical disabilities. For example Dr Barry in 1986 and 1987 assessed the plaintiff as having 30 per cent loss of function of the right arm and 30 per cent loss of his right leg below the knee. These are the same percentages cited by Dr Searle following his examination in 1997. Curiously the only orthopaedic specialist who has examined the plaintiff at widely spaced intervals is Dr Pillemer whose first examination was in 1989 and who re-examined the plaintiff in 1997. From an initial estimate of 30 per cent loss of the right arm he expressed the view that the plaintiff had improved somewhat so that his percentage disability was only 20 per cent on the occasion of the latter examination. I confess I regard this as a surprising development having regard to the natural deterioration which affects the human body particularly that which has been injured. Overall I would accept that the plaintiff has suffered the very significant disability of some 30 per cent loss of his right arm and right leg. He also had problems in both shoulders and in both knees. The shoulder problems have been present from the beginning although they were regarded by Dr Pillemer in 1997 as not requiring any further intervention. Indeed that is the view expressed by Drs Brian and Harvey and no mention is made of the need for any likely operative intervention with the shoulders by any of the other doctors who have examined the plaintiff over the years, including Drs Kendall and Croser. Indeed the suggestion of shoulder arthroscopy was first made by Dr Pillemer in 1989 but following his examination in 1997 I gather that his opinion is that it is not really indicated. I would accordingly make no allowance for the cost of this procedure in the future.
As to the right foot and ankle however it is clear that the fractures which were originally occasioned to the plaintiff have involved the ankle joint and the prospect of an arthrodesis was raised by Dr Pillemer in 1989. This prospect was again mentioned by Dr Ehrlich in 1990 and Dr Searle now regards it as 'probable' that the plaintiff will come to such an operation in about 10 years time.
The plaintiff complains that his knees are of particular concern to him and indeed were the trigger for an attempt at suicide which he described to Dr Milton. Involvement of his left knee is posited upon the fracture of the tibial plateau at the time of the accident. It is accordingly acceptable that there should be some continuing sequelae as a result of this joint. The origin of the symptoms in the right knee is less easily explained although a fall of eight metres involving, as it did, fractures of the right foot would be likely to have some effect on the knee joint on that side as well. The plaintiff has had, however, at least one other injury to his knee but I would accept that overall the plaintiff is limited in his capacity to work at heights and on rough terrain largely because of the fracture of the calcaneum and partly because of ongoing problems with his knees attributable to this accident. It is noted that the plaintiff has not sought treatment (with one exception) for any of his injuries since last seeing his treating orthopaedic surgeon Dr Bhattacharyya in 1982. The one exception was that he contacted one doctor at Nowra Fair on one occasion in relation to his knee(s).
As well, I accept the evidence of Dr Milton that the plaintiff has suffered and continues to suffer from a depressive reaction to the accident and his consequent loss of bodily well being. Whilst Dr Milton did not regard this chronic depression as being of a severity where it was itself incapacitating nonetheless it is an element added to the plaintiff's undoubted physical disability which decreases the employment opportunities available to him. The plaintiff has done well to continue at the level of activity demonstrated thus far and it is likely that his determination will continue to see him perform at this level. He has obtained further qualifications, he has designed half a dozen houses or more. He has obviously assisted in the building of a number but he is still significantly disadvantaged.
Having found, as I indicated earlier, that his injuries were not however the sole or even the main reason for him leaving the employ of Boral I do not propose to award him the wage loss calculated on his behalf by Mr Morrison SC. I think the appropriate course is to provide a buffer in respect of lost capacity and opportunity in the past and to adopt a similar approach in respect of the future. I would not, however, allow any loss of superannuation in the circumstances. The figure I would propose in respect of the past is $50,000 and in the future $100,000 which sum is designed to include any time totally off work as a result of the arthrodesis occurring some time in the reasonable remote future.
As for general damage I observe that the plaintiff has now for 20 years suffered a level of discomfort and pain which will not appreciably diminish in the future. Indeed the prospect is for his condition to slowly deteriorate although the rate of deterioration to date has not been particularly marked. He was a man who treasured his physical well being and was committed to a number of vigorous activities which have since been denied him. His reactive depression manifesting itself in excessive alcohol consumption and ultimately the attempt at suicide are clear indicators of the extent to which his lifestyle has been (and continues to be) significantly affected. I would allow general damage in the sum of $75,000 apportioned as to $35,000 for the past and $40,000 for the future. On the past I would allow interest at the rate of 2 per cent per annum for 20 years, namely $14,000."
47 Zahner's argument in relation to damages is set out in the following pars [45] to [51] of his written submissions, which were not significantly expanded in oral argument:
"DAMAGES
45 As to damages only two aspects are challenged. His Honour allowed $75,000.00 for general damages. It is submitted that this is appellably low.
46 His Honour wholly accepted the appellant on quantum issues. The appellant was 29 at date of accident and was 49 at date of hearing. (J73D) He suffered severe orthopaedic injuries and his Honour regarded his return to work even in a limited capacity at an early date as commendable. (J73M)
47 His Honour noted that there was not a great deal of dispute amongst the orthopaedic specialists concerning the level of physical disability being substantial loss of function of the right arm and of the right leg below the knee. (J75P) His Honour accepted that the plaintiff had suffered a 30% loss of his right arm and right leg and also had problems in both shoulders and both knees. (J76D) He thought it unlikely that the plaintiff would come to shoulder arthroscopy but it was probable the plaintiff would come to an arthrodesis in the ankle joint. (J76P) His Honour accepted that there were significant knee problems (J76W) consequent upon the fall of 8 metres. His Honour accepted that the plaintiff had significant restrictions in work.
48 In addition, his Honour accepted psychiatric evidence from Dr Milton that the plaintiff had and continued to suffer from a depressive reaction to the accident.
49 His Honour's conclusion is set out at J78L.
'… the plaintiff has now for 20 years suffered levels of discomfort and pain which will not appreciably diminish in the future. Indeed the prospect is for his condition to slowly deteriorate although the rate of deterioration to date has not been particularly marked. He was a man who treasured his physical well-being and was committed to a number of vigorous activities which have since been denied him. His reactive depression manifesting itself in excessive alcohol consumption and ultimately the attempt at suicide are clear indicators of the extent to which is lifestyle has been (and continues to be) significantly affected. I would allow general damages in the sum of $75,000.00 apportioned as to $35,000.00 for the past and $40,000.00 for the future.'
50 It is submitted that both for the past and for the future his Honour's allowance for general damages given his own findings is manifestly inadequate.
51 In addition to these matters his Honour, it is submitted, made inadequate allowance for future out-of-pocket expenses. He allowed only for a future arthrodesis in the sum of $2,000.00. Whilst it was true that the plaintiff had had little medical treatment (J77K) it was appropriate, it is submitted, to allow for more than merely the arthrodesis simplicitor. Presumably the appellant would have attended upon GPs and specialists prior to the arthrodesis and would be likely to be supervised and perhaps undergo physiotherapy and require medication subsequently. The possibility of shoulder arthroscopy, although rendered unlikely by his Honour's findings at J76K, should also have been considered on a Malec v J.C. Hutton Pty Ltd (1969) 169 CLR 638 basis. Dr Roger Pillemer in his report of 12 August 1999 whilst expressing the opinion that the appellant when seen in March 1997 did not require an arthroscopy of the shoulder nevertheless indicated that an arthroscopy may be considered if symptomatology increased (Plaintiff's Medical Reports Exhibit C). Moreover, the appellant needed, on the unchallenged medical evidence, psychiatric treatment. Allowance should have been made for the possibility that he would accept advice in the future and undergo such treatment. His other physical injuries were likely, on his Honour's own findings, to lead to increasing disability and the likelihood of other medical attendances. It is submitted that his Honour's allowance for future out-of-pockets was accordingly clearly inadequate and should lead to the intervention of this Court."
48 Since Andreas did not appear at the hearing in this Court, it is convenient to note Boral's submissions on damages. Paragraphs [23] to [29] of its written submissions were as follows:
"Ground of Appeal 10 - General damages manifestly inadequate
23 His Honour made an assessment of the likelihood of a shoulder operation on the totality of the medical evidence. He concluded in effect that no such operative treatment would be needed. Evaluative assessments of that character must necessarily be influenced by his Honour's assessment of the man - this Court cannot interfere.
24 The only psychiatric evidence is a report of Dr Rod Milton in 1990.
25 Zahner worked from 1981 to 1987 as a scaffolder.
26 Thereafter, he worked on the South Coast as a block layer - heavy work, albeit (on his evidence) not full-time. He physically built his own home, with some assistance.
27 The advantage his Honour had in seeing Zahner over many days must be given considerable weight. Whatever words appear in the transcript, his Honour's assessment of the man can never be recaptured by this Court.
28 The allowance of interest on $35,000 for 20 years is to be considered in determining whether or not the award of general damages is manifestly inadequate.
29 It cannot be demonstrated that the award of $75,000, in the circumstances, is outside the range of proper exercise of discretion."
49 These paragraphs were supplemented by a brief oral argument by Boral's counsel in the following terms:
"Can I deal with the damages issues to get them out of the way? The future out of pocket expenses were allowed by his Honour with the further comment (arthrodesis) $2,000 see p 79 of the judgment. That plainly has built into it an acceptance by his Honour that 20 years after the event the prospects of him coming to an operation by reason of the accident must be significantly discounted. It is to be judged against the fact that the proved out of pocket expenses over 20 years were see p 79 1 D $1,149.70. So his Honour has allowed for the future something like almost twice as much as that which had been demonstrated as necessary over the past 20 years. It can't be said to be unreasonable we would submit.
So far as general damages is concerned the O'Crikie(?) principle seems to be the only basis upon which an argument is put. His Honour saw the plaintiff over many days, there must be a significant component in his Honour's assessment being his judgment of the man and the extent to which he has suffered and is likely to suffer. As we say in our written submissions, you should take into account the fact that, notwithstanding that his damages given in the dollars of the year of judgment, I won't surprise Mr Justice Grove, you must take into account the fact that whilst they're today dollars there is effectively a four per cent interest component running over 20 years, it's reduced by half to take account of the fact that it's an accruing - but it's not $75,000, it's $75,000 plus I think about $14,000 in interest, that is part of the damages. That is to put him in the same position as if the dollars had been given to him back in 1980, it is part of the general damages. It, of itself, $75,000 doesn't offend one's sensibilities, it's not so outrageous as to be outside the range of a properly exercised discretion, it's not demonstrated to be, it's just an appeal to - that's not enough. But taking into account the interest of another $14,000 odd, it's not $75,000, it's nearly $90,000.
This is a man who went back to work of course as a scaffolder for seven or eight years before he went to the South Coast. This is a man who built with his own hands, and the assistance of others, the mud brick house on the South Coast. It is far from someone who is a cripple. His Honour had the opportunity of looking at the plaintiff over a long period of time, you can never hope to get to that position, we don't want to say anything more about damages than that."