Marco Jurjevic v Tereel Pty Limited Trading As Celtic Plastering Co and John Holland (Constructions) Pty Limited [1986] ACTSC 100 (17 October 1986)

SUPREME COURT OF THE ACT

MARCO JURJEVIC v. TEREEL PTY LIMITED TRADING AS CELTIC PLASTERING CO. AND JOHN
HOLLAND (CONSTRUCTIONS) PTY LIMITED
S.C. No. 1572 of 1983
Negligence - Joint Tort Feasors

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Gallop J.(1)

CATCHWORDS

Negligence - employer's duty of care to provide a safe system - occupier's duty of care to workman employed by sub-contractor on building site

Negligence - breaches of statutory duty by employer and head contractor on building site - failure to provide safe scaffold contrary to Scaffolding and Lifts Regulations (NSW)

Joint tort feasors - just and equitable contributions - apportionment between joint tort feasors

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

Cervellone v. Besselink Bros. (1984) 55 ACTR 1

Fazlic v. Millingimbi Community [1982] HCA 3; (1982) 150 CLR 345

Scaffolding and Lifts Regulations (NSW), regs.73 and 86

HEARING

CANBERRA
17:10:1986

ORDER

There be judgment for the plaintiff against both defendants in the sum of $291,215.51, apportioned as to $87,364.00 to the first defendant and $203,851.51 to the second defendant.

The defendants pay the plaintiff's costs apportioned as to 30% to the first defendant and 70% to the second defendant.

DECISION

This is an action for damages for personal injuries sustained by the plaintiff in an industrial accident on 24 March 1982. The plaintiff has sued the first defendant as his employer and alleges breaches of the first defendant's contractual duty to take all reasonable precautions for the safety of the plaintiff while engaged in his work as a plasterer's labourer, not to expose the plaintiff to a risk of damage or injury which it knew or ought to have known, to provide and maintain safe and adequate plant, to take reasonable care that the place in which the plaintiff carried out his work was safe and to provide and maintain a safe and proper system of work. He also sues the first defendant in negligence, particulars of which are set out in paragraph 5 of the amended statement of claim filed on 1 July 1986.

2. In addition the plaintiff sues the first defendant and the second defendant for breach of statutory duty, the particulars whereof are identical against both defendants and are set out in paragraph 6 of the amended statement of claim.

3. By its defence the first defendant has denied each and every allegation of fact alleged against it and denied that it was guilty of any negligence towards the plaintiff. It was conceded by the first defendant in the course of the trial of the action that the plaintiff was employed at all material times by the first defendant.

4. By its defence the second defendant put in issue all relevant allegations made by the plaintiff against it, and in addition alleged contributory negligence on the part of the plaintiff by his failure to take care for his own safety, particulars whereof are:

(a) failing to lock the wheels of the mobile scaffold

while using it;
(b) causing or permitting the scaffold to roll over a
step thereby causing the scaffold to collapse;
(c) failing to follow safe practice in the use of
scaffold; and
(d) failing to heed warnings or instructions as to the
use of the scaffold.

5. The defendants have respectively delivered to each other notices claiming contribution or indemnity. The first defendant has claimed against the second defendant that the second defendant requested the first defendant to perform rectification work on the Greek Embassy building, which included work to the concrete waffle soffits and pursuant to the request the second defendant supplied a scaffold for use by the first defendant's servants. It is alleged that by reason of the negligence of the second defendant the plaintiff sustained injuries when the scaffold overbalanced and particulars of negligence were provided in paragraph 6 of the notice claiming contribution.

6. In the alternative, the first defendant alleged as against the second defendant that the plaintiff's injuries were caused by the second defendant's breach of its statutory duties imposed by regs.73 and 86 of the Scaffolding and Lifts Act 1912 (sic) and, as a further alternative, that there was a breach of an oral agreement between the first defendant and the second defendant, namely that the scaffolding would be suitable and safe for its intended purpose.

7. By the notice of the second defendant claiming contribution from the first defendant, the second defendant alleges breaches of a written agreement between the defendants that the first defendant will indemnify the second defendant against any liability, loss, claim or proceeding whatsoever arising under any statute or the common law in respect of personal injury or death of any person whomsoever arising out of or in the course of or caused by the execution of the works, or in any way relating thereto unless due to any act or neglect of the second defendant or any person or persons in the direct employ of the builder and for whom he is solely responsible. It is further alleged that by reason of other clauses in the agreement the first defendant agreed to indemnify the second defendant in respect of all claims and action of employees of the first defendant in the course of carrying out the building work at the Greek Embassy.

8. It is not necessary to set out any further the terms of the notice of the second defendant claiming contribution from the first defendant.

9. The plaintiff was born at Zadar, Yugoslavia, on 15 January 1949. He commenced his schooling at seven years of age and left when he was 15 years of age in 1964. He did two years farm work, two years army service, about another year in farm work and he came to Australia, and the Australian Capital Territory in particular, in April 1970. He married on 27 January 1971 and he has three daughters aged 14, 11 and 4 1/2 years. The family lives at Macgregor, a suburb of Canberra. After his arrival in the Australian Capital Territory the plaintiff worked for four years as a sheet metal worker, another four years doing concrete work, four years doing pipe laying, and he commenced employment as a plasterer's labourer with the defendant about one year before his accident.

10. I find that the head contractor on the construction of the Greek Embassy in Empire Circuit, Yarralumla was the second defendant. The first defendant had a contract with the second defendant to do interior and exterior plastering work and the application of a decorative coating to the outside of the building. The area to which the decorative coating had to be applied was a verandah which extended right around the building and in the link between that building and another building. There was about 300 square metres in all to be treated. The area was at a height of just over 4 metres.

11. Before commencing the work Mr Leon Jones, a director of the first defendant, noticed that the waffle soffits in the area were not suitable for the application of the decorative coating because the concrete surface of the waffle soffits had areas of defective finish due to the way in which the formworkers had left them. Jones decided that these deformities would have to be corrected. He discussed the matter with the second defendant's project manager, Mr Wolstencroft and site foreman, Mr Terry Howe, who requested Jones to do something about correcting the defects. Jones agreed that the first defendant would do the work on a cost plus basis, taking the view that it did not form part of the contract work covered by the written contract (Exhibit 1) and it was too hard to price the work because the areas concerned needed various degrees of rectification. Jones told Howe that the second defendant would have to erect a scaffold to enable the first defendant's employees to do the work. Howe agreed to that suggestion and said that he would get the scaffold. This conversation took place some 3-4 weeks before the plaintiff was injured, which puts it around about the beginning of March 1982.

12. Two scaffolds were provided by the second defendant for the use of the first defendant and the rectification work commenced about a fortnight before 24 March 1982 when the plaintiff was injured. The two scaffolds each consisted of tubular scaffolding pipes with cross-braces mounted on wheels to make the scaffolds mobile. In the course of the work it came to Jones' notice that his workmen could not reach a drip mould at the front of the building because it was about 8 metres off the ground and there was a sheer drop away from the verandah, although there were steps leading up to the verandah at the immediate front of the building. The scaffolds which were in use had been erected by the employees of the second defendant. Jones spoke to Howe about one week before the accident about the problem his men were having in reaching the drip mould at the front of the building. Jones told Howe that he would have to put up a scaffold on the outside of the building, to which Howe replied that that course would be too costly. Howe said that he would put it right and that it was not Jones' concern. That conversation took place about one week before the plaintiff's accident.

13. Subsequently another foreman of the second defendant, Mr Ron Burgess, asked Jones why the first defendant was not getting on with the work, to which Jones replied that if the scaffold was provided they would get on and do the work. Burgess replied that the second defendant would provide the scaffold. That conversation took place about four days before the plaintiff's accident. The second defendant then affixed a cantilever to one of the scaffolds but this device proved unsatisfactory. Except at the entrance, where the accident happened, there was a handrail around the piers on the outside of the verandah to the building and the upright supports of the scaffolding hit the handrail and impeded the movement of the scaffold to a position where the men could work from the cantilever on the area to be treated. The cantilever which had been added to that scaffold was less than the cantilever which was subsequently provided and I find that that means that the cantilever was less than .8 metre in width. In any event for the reasons indicated it was not possible for the first defendant's employees to reach the area to be treated.

14. Jones spoke to Howe again about this problem 3-4 days before the plaintiff's accident and Howe said that he would ring up the scaffold hirers to see if they had a larger hop-up bracket (meaning a larger cantilever). A scaffold with a larger cantilever was subsequently provided by the second defendant for the use of the first defendant. That scaffold was 2.25 metres high with a working platform on the top which was 1.3 metres wide. The scaffold was mounted on four wheels with brakes on each wheel. To the scaffold had been added a cantilever which was .8 metre in length and 1.3 metres wide. The addition of the cantilever to the original scaffold provided an overall working platform of 1.8 metres by 1.3 metres. A sketch plan of the scaffold was in evidence (Exhibit B).

15. The plaintiff had started work on 24 March 1982 at about 7.00 am. The work which the plaintiff and McMurray were doing was grinding the rough edges and superfluous nobs from the plaster work around the waffle soffits and eaves of the building. Their leading hand was Mr William Rabbets, another employee of the first defendant, who had been working on the Greek Embassy site since the first defendant commenced work there in November 1981. As previously stated, under the contract the first defendant had agreed to plaster the inside of the building and cement render the bricks on the outside. So far as the outside is concerned, the work involved straightening the waffle soffits and chopping off any little bits of concrete. Rabbets had detailed McMurray and the plaintiff to do that work.

16. After morning tea, which was at about 9.15 am, McMurray and the plaintiff went on to the scaffold and the plaintiff moved out on to the cantilever so that he could reach the area upon which he was required to work. He was using a small grinder, sandpaper and a rough stone. McMurray was also on the working platform in that part which formed part of the original scaffold. McMurray was doing some other patching work from that position. He then came forward on to the cantilever part of the working platform. The combined weight of the plaintiff and McMurray caused the scaffold to tip over. The plaintiff, realising that the scaffold was starting to tip, jumped from the scaffold and landed on a landing which was at least five steps down from the verandah on which the scaffold was standing.

17. The plaintiff said in evidence that he landed on the bottom landing but I think that he was probably incorrect about that. When the plaintiff jumped he landed on both feet and collapsed, managing to roll away from the falling scaffold. The place where the plaintiff landed was a hard sandstone surface. Rabbets was nearby. He heard a noise, looked around, saw the plaintiff in the air, although he did not actually see him jump from the scaffold, and heard the crash as the scaffold fell over the stairs. The plaintiff was removed to Woden Valley Hospital by car and admitted.

18. After the plaintiff had been taken to hospital Howe caused the scaffold to be dismantled, which had been done by the time Jones arrived on the site at about 11.30 am. When Jones asked Howe where the scaffold was Howe replied that he had had it dismantled because it was dangerous and in the way.

19. I accept Rabbets' evidence that employees of the second defendant dismantled the scaffold and rebuilt it the next day. In doing so, they put round pipes known as jacks, on the top of the scaffold which were used to prop the scaffold against the ceiling to stop it from tipping. All scaffolds have those jacks, but they were not in use at the time when the plaintiff suffered his accident. After the accident they were provided at all times until the work on the waffle soffits had been completed.

20. I also accept Jones' evidence that Howe admitted to him that he had directed that the scaffold be dismantled. Howe said in evidence that he could not remember his conversations with Jones, but conceded that the scaffold would only have been dismantled on the instructions of Burgess or himself.

21. The second defendant called its project manager, Mr Wolstencroft, to give evidence on its behalf. He confirmed that when the formwork was stripped from the building the waffle soffits were not in a fit state to have the decorative coating applied. He said that Jones had pointed out that the substance to be applied was very thin and agreed that the first defendant should go ahead and do the work as a variation to the contract between the first defendant and the second defendant, to be paid for on a daily work basis. He confirmed that the cleaning of the soffits commenced on 17 March 1982 with the use of a small mobile scaffold on the western side of the building. He did not see the scaffold which collapsed on 24 March 1982 nor the resulting debris, and he described the accident as having happened on the southern side of the building. Later, the witness Burgess described the accident as having happened on the western side, but it is clear on the evidence that it happened at the front of the building and the geographical description is not important.

22. Wolstencroft said in cross-examination that in September 1981 he had issued memoranda relating to safety procedures directed, inter alia, to the site foreman Howe to ensure that scaffolding was appropriate and properly affixed. A similar directive would have been given to Burgess later when he took over as the general foreman from Howe. The safety officer would also have been directed as a matter of daily routine to check all scaffolds for safety. Because there were a lot of sub-contractors on site, Wolstencroft had directed his employees to generally police all the work on the site.

23. I accept the evidence of Wolstencroft. It does not differ in any material way from that of the plaintiff's witnesses or Jones, who gave evidence on behalf of the first defendant.

24. The second defendant also called as witnesses Burgess and Howe. It is not necessary to deal with all their evidence but only those parts which conflict with the evidence of the plaintiff, Rabbets and Jones. After confirming that the rectification work was necessary and that it was to be done by the use of a mobile scaffold, Burgess said that there were two or three scaffolds on site and he saw a scaffold with a cantilever, which he described as a "three planker" 800 millimetres wide. He described how the hop-up bracket was supported in the legs of the mobile scaffold. He said that the hop-up bracket arrived on site 3-4 days before the accident and that he had seen the scaffold erected with the cantilever extension on it some 3-4 days before the accident, although he was not certain about that. It was then on the north-western corner of the building. He then described how he had gone on to the scaffold with Rabbets the day it was erected, moved out on to the cantilever and walked around its outside edge pushing against the handrails to satisfy himself about its stability before it was used by any workmen. He found that there was no tilting or movement. He maintained that the scaffold which collapsed was the same scaffold as had been erected some 3-4 days before the accident with the cantilever attached and denied that there had been any other hop-up bracket added earlier and replaced by a larger one.

25. In this respect his evidence was in conflict with the evidence of Rabbets who was recalled by the plaintiff. He denied that he had ever got on to a mobile scaffold with Burgess before the accident and denied that he had ever tested a scaffold with him before the accident. He said that he had tested a scaffold with Burgess after the accident and after the scaffold had been re-erected with jacks to the ceiling in position so as to prevent tilting. He described how he had leaned against the handrails to ensure that there was no movement. Where Burgess is in conflict with the plaintiff, Rabbets and Jones, I reject his evidence. He was first asked to give evidence only on the first day of the trial and conceded in cross-examination that he had not thought about what had happened on 24 March 1982 except very recently. I think that he has confused the later occasion which Rabbets gave evidence about and I am satisfied that that happened after the accident, not before.

26. The plaintiff called expert evidence from Mr Leonard Wallace Gilmour, civil engineer. He expressed the opinion that the subject scaffold had tipped over because there was more weight on the cantilever end of the working platform than on the other end. The design of the whole structure with the cantilever added gave rise to the possibility that the structure would tip over if there was more weight on the cantilever side of the platform than on the other. Gilmour expressed the opinion that that probability could be eliminated either by adding more weight to the side other than the cantilever side or by putting tongs in between the top of the back legs of the scaffold and the ceiling. He said that the design was deficient and that the scaffold must have tipped over, unless it was otherwise supported. In order to get to a remote place it would have been better to build up a new scaffold on the outside of the building. I accept Mr Gilmour's evidence.

27. I find that the scaffolding upon which the plaintiff was required to work by the first defendant was inadequate and that the first defendant failed to take any adequate precautions for the safety of the plaintiff by inspection of the scaffolding or otherwise. The first defendant's foreman, Rabbets, directed the plaintiff to work on the scaffolding platform without any check or warning and it was unstable and therefore unsafe. Likewise the second defendant in providing an unsafe and unstable scaffold for the plaintiff to work on without taking any adequate precautions to ensure that it was safe was guilty of negligence towards the plaintiff. It was only after the accident that the reconstructed scaffold was made safe.

28. It is no answer for the second defendant to rely upon some purported delegation of its common law duty of care to the plaintiff by engaging a qualified scaffolder. There was some evidence that the second defendant had engaged a qualified scaffolder. But there was no evidence that he supervised the construction of the scaffold. On the evidence it is clear that the scaffold was erected by employees of the second defendant. As soon as it had been erected, the first defendant's employees, including the plaintiff, went to work on the waffle soffits and the eaves using the scaffold supplied by the second defendant with all its deficiencies.

29. The second defendant as occupier of the building site had a duty of care to the plaintiff as an invitee. Even if the facts had supported the submission of counsel for the second defendant that the second defendant had delegated its duty to the plaintiff by entrusting the construction of the unsafe scaffold to an expert scaffolder, which, in my view, has not been established on the evidence, it has been affirmed that an invitor's duty to his invitee is non-delegable in the sense that it is no answer that the invitor has engaged a competent, independent contractor to remedy the hidden defect (Kondis v. State Transport Authority [1984] HCA 61; (1984) 154 CLR 672 per Mason J. at 682 and 686).

30. I therefore find negligence against the second defendant also.

31. With regard to the breaches of statutory duty alleged against both defendants s.7(2) of the Scaffolding and Lifts Ordinance 1957 provides that the provisions of the Scaffolding and Lifts Regulations of the State of New South Wales, subject to certain exceptions, apply as laws of the Territory. Regulations 73 and 86 of the Scaffolding and Lifts Regulations made pursuant to the Scaffolding and Lifts Act provide, inter alia:

"73. Any person who directly or by his servants or
agents carries out any building work shall take all
measures that appear necessary or advisable to minimise
accident risk and to prevent injury to the health of
persons engaged in such building work and for this
purpose, without limiting the generality of the
foregoing, he shall -

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

. . ."

"86.(1) Scaffolding Construction - Every
scaffolding and every part thereof shall be of sound
material, good construction, adequate strength, free
from patent defects and be suitable and safe for the
purpose for which it is intended."

32. As both defendants carried out building work and provided the scaffolding used by the plaintiff, I find that both defendants were in breach of their statutory duties to the plaintiff in that they failed to provide suitable and safe scaffolding for the work to be done by the plaintiff and in the other respects set out in paragraph 6 of the statement of claim.

33. With regard to the allegation of contributory negligence brought by the second defendant against the plaintiff I find that none of those particulars is made out and I therefore find that the second defendant has failed to establish any contributory negligence on the part of the plaintiff. There will be judgment for the plaintiff against both defendants.

34. I turn to the question of apportionment of liability between defendants.

35. In my view the second defendant should bear the greater proportion of the responsibility for the subject accident. As stated earlier, the second defendant provided unsafe scaffold at the request of the first defendant, which was quite specific about the use to which the scaffold was to be put. Employees of the second defendant constructed the scaffold. Generally the second defendant was in charge of the whole building operation and professed to have the expertise to be able to provide the scaffold from which the necessary work could be done. It is true to say that the first defendant, through its leading hand Rabbets, and Jones, failed to inspect the scaffold and, as I have already found, it was guilty of negligence to the plaintiff. But the first defendant did not profess to have expertise in the provision of safe scaffold, whereas the second defendant did.

36. This does not dispose of the question of apportionment. The terms of the written agreement between the two defendants are relevant. By its notice claiming indemnity the second defendant has pleaded the express terms and conditions of the written agreement and has contended that by reason of those terms and conditions the first defendant is obliged to indemnify the second defendant in respect of any liability of the second defendant to the first defendant's employees, such as the plaintiff.

37. The relevant clauses of the written agreement between the two defendants, which is a printed form of agreement (Exhibit 1), are clauses 21 and 22. They read as follows:

"Indemnity

21. (a) The Sub-Contractor shall be liable for and
shall indemnify the Builder against any legal liability
loss claim or proceeding in respect of any injury or
damage whatsoever to any property real or personal
insofar as such injury or damage arises out of or in
the course of or by reason of the execution of the
Works PROVIDED ALWAYS that the same is due to any act
negligence omission or default of the Sub-Contractor
his servant or agent or of any sub-contractor from him
his servant or agent.

(b) The Sub-Contractor shall be liable for and
shall indemnify the Builder against any liability loss
claim or proceeding whatsoever arising under any
statute or at common law in respect of personal injury
to or death of any person whomsoever arising out of or
in the course of or caused by the execution of the
Works or in any way relating thereto unless due to any
act or neglect of the Builder or of any person or
persons in the direct employ of the Builder and for
whom he is solely responsible.

Insurance

22. (a) The Sub-Contractor shall effect public
liability insurance extended to include the name of the
Builder as Principal for an amount not less than that
stated in the Third Schedule to this Contract in
respect of accidents or incidents arising out of or in
the course of or caused by the execution of the Works
and resulting in:

(i) the death of or bodily injury (including
illness) to any person not being a person
who at the time of the accident is engaged
in or upon the service of the insured under
a contract of service or apprenticeship; and

(ii) damage to property (other than the Works
being executed by the Sub-Contractor)
including property of the Builder or in
which he is interested subject to the
exclusions conditions and excesses agreed by
the Builder and Sub-Contractor.

(b) The Sub-Contractor shall effect Workers'
Compensation or Employers' liability insurance extended
to include the name of the Builder as principal and for
an amount not less than that stated in the said
Schedule to this Contract against any Liability loss
claim or proceeding whatsoever whether arising by
virtue of any statute relating to Workers' Compensation
or Employers' Liability or at a common law in respect
of any person employed by him or who shall be deemed to
be or have been his worker or employed by him for the
purpose of any such statue AND shall ensure that any
sub-contractor from him (nominated or otherwise) is
insured in like manner.

(c) The insurance referred to in this clause shall
be effected before the Works are commenced and shall be
maintained effective in all respects until completion
of the Works pursuant to this Contract and in respect
of Public Liability and of Workers' Compensation until
the issue of a Final Certificate pursuant to the
provisions of the Head Contract in that regard. No
insurance arranged in accordance with this clause shall
be modified, amended or cancelled unless the Builder
shall have prior notice from the insurer and such
requirement shall be included as a condition of each
insurance policy.

(d) Prior to the commencement of work hereunder
the Sub-Contractor shall furnish to the Builder
evidence that such insurances as aforesaid have been
effected and shall supply particulars thereof and shall
produce the relevant policies of insurance for
inspection by the Builder. The Sub-Contractor also
shall furnish to the Builder from time to time on
request of the Builder evidence that the said
insurances remain current and that all premiums in
respect thereof have been duly paid to the date of such
an enquiry. The Sub-Contractor warrants that the
particulars set out in the Third Schedule hereto are
accurate and correct as at the date of this Contract.

(e) The Sub-Contractor shall effect the insurances
required by this clause with an Insurer approved by the
Builder and shall deposit with the Builder the
originals or certified copies of the cover notes
policies and premium receipts failing which the Builder
may effect such Insurances and the premiums therefore
shall be deducted from the Contract Sum.

(f) Wherever insurance is effected in joint names
or is extended to cover the Builder as principal then
the policy of such insurance shall provide that insofar
as the policy may cover more than one insured all
insuring agreements and endorsements with the exception
of limits of liability shall operate in the same manner
as if there were a separate policy of insurance
covering each named insured."

38. In support of its submission that the first defendant is obliged to indemnify the second defendant in respect of any liability of the second defendant to the plaintiff, the second defendant relied upon the decision of this court in Cervellone v. Besselink Bros. (1984) 55 ACTR 1. The submission was that in that case Kelly J. held that a clause in a contract requiring the sub-contractor to effect insurances to the satisfaction of the builder protecting the proprietor, the builder and sub-contractor against, inter alia, claims by employees in respect of injuries sustained during the carrying out of the works, whether arising at common law or by virtue of any statute relating to workers' compensation, imposed upon the sub-contractor an obligation to indemnify the builder by the indirect means of effecting appropriate insurances.

39. Kelly J. held that the plain purpose of the clause then under consideration was to protect the builder by insurances and thereby keep it safe against such claims as might fairly come within the ambit of the clause. No doubt in the circumstances of that case and in the construction of the clause under consideration, his Honour's remarks were correct. The sub-contractor had failed to insure appropriately and was thereby in breach of the contract. The extent of the damages for that breach of contract was held to be the amount which the builder was to be ordered to pay pursuant to the judgment.

40. But that is a different situation to the one prevailing in the present case. It was an agreed fact that the first defendant had taken out the appropriate insurance pursuant to its obligation to do so under clause 22(b) set out above. Cervellone v. Besselink Bros. is therefore of no assistance to the second defendant in this case.

41. In my view, clause 22(b) does not cast upon the first defendant an obligation to indemnify the second defendant against any loss claim or proceeding, whether arising by virtue of any statute relating to workers' compensation or employer's liability or at common law, in respect of any person employed by the first defendant. Clause 22(b) appears in the contract under the heading of "Insurance". The agreed fact, as I have already stated, is that the first defendant did effect the appropriate insurance. In my view clause 22(b) is irrelevant to any question of indemnity between the defendants.

42. The appropriate clause in the contract in relation to indemnity is clause 21(b). It is to be noted that it appears under the heading "Indemnity". It provides by its terms that the sub-contractor (the first defendant) shall be liable for and shall indemnify the builder (the second defendant) against any liability loss claim or proceeding whatsoever arising under any statute or at common law in respect of personal injury to . . . any person whomsoever arising out of or in the course of or caused by the execution of the works or in any way relating thereto, unless due to any act or neglect of the builder itself.

43. By the operation of the exclusory words at the end of the clause, no liability to indemnify on the part of the builder arises if the act or neglect causing injury in the course of the execution of the works was caused by the builder or some person employed by him. I have already found that the injuries sustained by the plaintiff were substantially caused by the act or neglect of the second defendant through its servants or agents. Hence, in my view, clause 21(b) does not give rise to any indemnity by the first defendant of the second defendant for that liability, provided the injury arose out of or in the course of or was caused by the execution of the works. In this respect the first defendant submitted that the additional work by way of cleaning up the waffle soffits and eaves was the subject of a separate oral contract between the first and second defendant and did not arise out of or in the course of the execution of the works covered by the written contract between the defendants.

44. It was submitted on behalf of the first defendant that on the whole of the evidence I should find that the agreement to do the extra work was made orally between Jones on behalf of the first defendant and Wolstencroft, Burgess and Howe on behalf of the second defendant, and that it was a term of that oral agreement that the second defendant would provide suitable and safe scaffolding. Counsel referred to the fact that the cost of doing the extra work exceeded the contract price agreed in the oral agreement.

45. In my view, this is an artificial approach to the matter. The agreement to do the additional work was really a variation within the meaning of clause 20 of the written agreement. Clause 20 provided that the cost of executing extra work had to be given in writing in order for the first defendant to be entitled to payment for that work. I find that the written direction given by Howe on behalf of the second defendant, to Jones on behalf of the first defendant on 1 April 1982, which was admittedly one week after the plaintiff's accident, was a retrospective written direction by the second defendant to the first defendant pursuant to clause 20(b). That being so, I would hold that the work on which the plaintiff was engaged at the time of his accident arose out of or in the course of the execution of the works covered by the written agreement between the defendants. However, for the reasons already stated, I hold that the first defendant is not liable to indemnify the second defendant's negligence to the plaintiff. In the circumstances it is unnecessary to consider further the submissions that were put in relation to the operation of clauses 34(b) and (d) of the written agreement.

46. In summary, I hold therefore that the first defendant is not obliged, as a matter of contract, to indemnify the second defendant in respect of its liability at common law to the plaintiff. The first defendant is therefore entitled to recover contribution from the second defendant in respect of the plaintiff's damage pursuant to s.11(4) of the Law Reform (Miscellaneous Provisions) Ordinance 1955. In my view it is just and equitable to apportion the defendants' liability to the plaintiff in the ratio of 30% to the first defendant and 70% to the second defendant.

Damages

47. After admission to the Woden Valley Hospital the plaintiff came under the care of Dr John Calder, orthopaedic specialist. He had suffered a fracture of both ankles. Because there was gross swelling, his legs had to be elevated and operative treatment deferred until such time as the swelling subsided. Once the swelling had gone down Dr Calder performed a joint reduction and bone grafting of the left calcaneus which was very severely disrupted. He decided to treat the right fractured calcaneus with conservative management and no operation was performed on that side. The left leg was encased in a short plaster up to the knee and the plaintiff was discharged on crutches and in plaster on 21 April 1982. He had the plaster on for about two months. He suffered constant pain in the left foot and pain, though not as severe, in the right foot. His problems with his left foot continued and because of this persisting pain he was admitted to hospital again, this time at the John James Hospital, and underwent a fusion operation on the talo-calcaneal joint. Dr Calder described this operation as a substantial procedure. The plaintiff was discharged on 8 November 1982 in plaster. The plaster was removed on 12 January 1983 and X-rays taken on 12 January 1983 demonstrated that the fusion was clinically united.

48. I accept the plaintiff's evidence that notwithstanding the fusion operation his left ankle and foot did not feel any different. He continued to suffer pain in the left foot, basically in the same area as before the fusion operation. The pain is still with him all the time and worse in change of weather or when it is really cold.

49. He was reviewed by Dr Calder from time to time and obtained a second opinion from Dr G. Stubbs, orthopaedic surgeon. When last reviewed by Dr Calder on 4 March 1985 he complained that the left ankle was just as painful as it had always been, notwithstanding that there was good fusion at the operation site. Dr Calder concluded that the reason for the plaintiff's continuing symptoms was most likely an impingement on the tendons which run behind the lateral malleolus. Accordingly Dr Calder recommended a further small procedure to widen out a tunnel area and make more room for the tendons.

50. The plaintiff has declined to have this operation. Consequently, he still has the pain in his left ankle. He is able to walk with the aid of a walking stick. He wears a plastic brace on his left leg which goes from the ankle to the knee. He can walk for a couple of hundred metres then he has to sit down and have a rest. He cannot stand for longer than about half an hour. He has to sit down and have a rest before he can resume walking or standing.

51. He came under the care of Dr Farnbach at the Woden Valley Rehabilitation Centre at the request of Dr Calder and was reviewed by Dr John R. Corry, consultant in rehabilitation medicine, on 3 February 1984. Dr Corry concluded that the plaintiff had sustained serious injury to both feet, which had left him with chronic residual pain particularly on the left side with limited weight bearing tolerances. Dr Corry agreed with Dr Calder that the relatively minor procedure contemplated by him would be advisable for the plaintiff.

52. The plaintiff continued at the rehabilitation unit at the Woden Valley Hospital. The treatment consisted of phsyiotherapy, hydrotherapy, some work in a timber shop, English classes and some instruction about computers. Nevertheless, he has no clerical skills and only moderate ability to read and write in English. When last seen by Dr Corry on 21 May 1986 Dr Corry noted that the plaintiff's physical situation appeared to be static. Dr Corry concluded that, whether the plaintiff has the operation or not, he requires further reconciliation therapy. This would involve assessing him for placement in a voluntary placement situation or, less probably, in the workshop at the Woden Valley Hospital. Having had his skills assessed, he would then be encouraged to engage in some government sponsored training. The assessment would take 8-10 weeks and on the job training, if a voluntary placement could be attained, another 12 weeks.

53. The plaintiff is reasonably articulate, having regard to his moderate education, and managed to express himself well in giving evidence. Of course, he can no longer engage in social games of soccer or bowling, and cannot enjoy the time with his children to the same extent as a normal father. Nor can he look after his garden or do rockery work. All that gets him down a bit. He takes tablets prescribed by his general practitioner for the relief of pain. He presented in the witness box as a fairly miserable but, in my view, sincere individual who will probably look for work when this case is over. He has been thinking about what he could do, although he has not tried to get any work so far.

54. On the question of general damages I take account of the fact that the plaintiff is only 37 years of age. Prior to the accident he was a hardworking, industrious labourer, described by his employer as an "exceptional employee". He now has a permanently arthrodesed left ankle and some continuing pain in his right ankle which exclude him from the main field of employment formerly open to him, namely, that of a labourer.

55. I find on the evidence that it is likely that a significant improvement could be obtained if the plaintiff was prepared to submit himself to a further operation on his left ankle, in which event the source of his present pain would probably be eliminated. Even so, what has been described by Dr Calder as a relatively small procedure would involve a general anaesthetic with the plaintiff being in hospital for about 4-5 days and about six weeks rehabilitation. He would still have and always will have some trouble with his right foot.

56. Applying the test laid down in Fazlic v. Millingimbi Community [1982] HCA 3; (1982) 150 CLR 345, I do not think it is unreasonable for the plaintiff to decline to have the operation at the present time. He may change his mind and have it at some time in the future.

57. For pain and suffering, inconvenience, loss of enjoyment of life and all the other matters I am required to take into account on the question of general damages, I provisionally assess the sum of $40,000.

58. With regard to past economic loss, I think it is reasonable to assess damages on the basis that the plaintiff has been totally incapacitated from the date of the accident to the present time. On the evidence before me the amount of wages lost to date is $76,947. I discount that figure slightly to take account of the vicissitudes of life during that period and provisionally assess the sum of $70,000.

59. During 1981 the plaintiff's brother-in-law, Tony Ciceran, who has a drainage contracting business, asked the plaintiff to join him in business as a partner. Ciceran's former partners for seven years were his brother, who died in 1979, and later one Simchick till 1980. The plaintiff used to accompany his brother-in-law on the job at weekends to get experience and, as I understand it, to familiarise himself with that sort of work. It was not unlike some of the work experience that he had already had after his arrival in Australia, and particularly from 1974 to 1982. With the object of the partnership in view, the plaintiff and the brother-in-law both enrolled in a drainers course at a technical college and by the end of 1981 the plaintiff had obtained an operative drainer's certificate based upon the results of that course. At the time of the accident he and his brother-in-law were waiting for the draining business to pick up before actually entering into partnership. They looked at machinery together and mutually anticipated that their partnership would have commenced about April 1982. Active involvement in that sort of work as a full time occupation is now denied to the plaintiff.

60. Ciceran has carried on business as a drainage contractor with his wife since 1982. I am satisfied that since then there has been sufficient work to support both Ciceran and the plaintiff in the business as partners, had the plaintiff been able to take up the offer. Ciceran has at times been offered more work than he could handle and has had to knock back offers of work.

61. I accept the evidence of Ciceran, supported by his income tax returns in respect of recent years, that he has earned substantial income as a self-employed drainage contractor. His earnings indicate that the plaintiff, if he had joined Ciceran in partnership, could have had substantial earnings by working long hours. I am quite unable to find, however, that the plaintiff's earnings would have been comparable to Ciceran's earnings and that his earnings in the future would have equated the sort of figures which Ciceran has been able to achieve. It seems to me that there would have been some additional capital outlay of substantial sums before the plaintiff could have aspired to the sort of earnings which Ciceran has achieved. Nevertheless, he has lost the chance of substantial earnings as a partner in a lucrative drainage business.

62. In all the circumstances I think it is more appropriate to assess loss of earning capacity on the basis that the plaintiff would have continued to earn approximately at the rate of a plasterer's labourer and bear in mind the loss of that chance. The present net wage of a plasterer's labourer was agreed to be $414.02 per week.

63. In assessing the plaintiff's residual earning capacity, it would not be reasonable to treat the plaintiff as being totally and permanently incapacitated until he attains the age of 65 years (another 28 years) and to calculate his loss of earning capacity at the rate of the wage of a plasterer's labourer subject to the usual vicissitudes. I bear in mind that the plaintiff has a good employment record. He was never unemployed prior to the accident. He is not unemployable now. The rehabilitation prospects on the evidence of Dr Corry are not particularly hopeful, but, with further training, the plaintiff has some meaningful residual capacity. It may be, for instance, that he could become associated with Ciceran in partnership as a drainage contractor, although not able to participate to the same extent as Ciceran because of his residual disabilities. In all the circumstances I think it is appropriate to measure the plaintiff's loss of earning capacity on the basis of 50% loss of what he could now earn as a plasterer's labourer. I measure that loss by the adoption of $200 per week net.

64. Applying the actuaries' figures, the present day value of $1 per week for a 37 year old man who would have worked till age 65, making no allowance for inflation or taxation on the invested sum, discounted at 3% is $915. An amount of $200 yields a figure of $183,000. I discount that figure further by 15% to take account of the vicissitudes of life. Accordingly I provisionally assess the sum of $155,000 for loss of earning capacity.

65. The income tax paid by the plaintiff on workers' compensation payments to date (Fox v. Wood component) was agreed at $6110.11 and I provisionally assess that sum. The agreed out of pocket expenses were $10,305.40 and I provisionally assess that sum.

66. For the purpose of calculating interest on the past economic loss it was agreed that the plaintiff has already been paid by way of weekly workers' compensation payments the sum of $55,010.30. For interest purposes I apportion general damages as to $25,000 to the past and $15,000 to the future. I add the difference between the $70,000 for past economic loss as provisionally assessed and the $55,010.30 workers' compensation paid to date, rounded off to $15,000, and the $25,000 portion of general damages for the past, yielding $40,000. Adopting the usual interest rate of 14% and applying it to half the sum of $40,000 to take account of the fact that the whole loss was not incurred at the date of accident, the resultant figure is $2,800 per annum. As it is now 3 1/2 years since the accident I award a lump sum of $9,800 for interest to the present date.

67. My provisional assessments therefore are:

General damages $ 40,000.00
Past economic loss 70,000.00
Loss of earning capacity 155,000.00
Fox v. Wood component 6,110.11
Out of pocket expenses 10,305.40
Interest on past economic loss 9,800.00

Total $291,215.51

68. Having considered that figure as a global sum I confirm my provisional assessments. There will be judgment for the plaintiff against both defendants in the sum of $291,215.51. Applying the apportionment of 30% to the first defendant and 70% to the second defendant I apportion the damages payable by the defendants to the plaintiff in the sum of $87,364 to the first defendant and $203,851.51 to the second defendant.

69. I further order that the defendants pay the plaintiff's costs in the same proportions. I shall hear counsel as to any order for costs in the contribution proceedings between defendants.