Stjepan Tomas v Anton Tomas and Dusko Peraic [1987] ACTSC 41 (23 June 1987)

SUPREME COURT OF THE ACT

STJEPAN TOMAS v. ANTON TOMAS and DUSKO PERAIC
S.C. No. 1195 of 1983
Claim for Negligence and for Breach of Statutory Duty

COURT

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

CATCHWORDS

Claim for Negligence and for Breach of Statutory Duty - Independent bricklaying subcontractor injured - Builder agreeing to supply and erect scaffolding - Whether liable - Assessment of damages.

HEARING

CANBERRA
23:6:1987

DECISION

The plaintiff who was born on 19 January 1940 sues for damages for personal injuries sustained on 18 March 1982. The defendants were partners, building a house at 52 Coningham Street, Gowrie, and had engaged the plaintiff to do necessary bricklaying work. It will be necessary to refer in more detail to the terms of the engagement.

2. By his statement of claim as finally amended, the plaintiff alleged that on 18 March 1982, during the course of his employment by the defendants as an independent contractor, he was required to assist with the repair of scaffolding which had been erected so that he might carry out his work. He claimed that while he was so engaged planks and plywood forming the platform of the scaffolding fell and struck him on the spine.

3. He brought his claim in a number of ways. First he alleged breach of an implied term in the contract between him and the defendants that they would provide a safe system and place of work for him by erecting and maintaining proper scaffolding from which he could do his work.

4. Secondly, he alleged that the defendants as occupiers of the site where he was present and working at their invitation owed him a duty of care.

5. Finally, he alleged that the defendants as builders and occupiers of the site were in breach of s.17A of the Scaffolding and Lifts Act 1912 (N.S.W.) (the Act), applicable in the Australian Capital Territory by virtue of s.7 of the Scaffolding and Lifts Ordinance 1957, and Regulations 73(1), 73(14), 73(16), 73(21), 75 and 87(3) of the Regulations made under that Act (the Regulations).

6. The nature of the duty of care owed in respect of the occupier/visitor relationship has been clarified by the recent decision of the High Court in Australian Safeway Stores Pty Ltd. v. Zaluzna (1987) 69 ALR 615. At p 620 of the report the Court, by majority, approved the statement of Deane J in Hackshaw v. Shaw [1984] HCA 84; (1984) 155 CLR 614 at pp 662-663 that:-

". . . it is not necessary, in an action in

negligence against an occupier, to go through
the procedure of considering whether either
one or other or both of a special duty qua
occupier and an ordinary duty of care was
owed. All that is necessary is to determine
whether, in all the relevant circumstances
including the fact of the defendant's
occupation of premises and the manner of the
plaintiff's entry upon them, the defendant
owed a duty of care under the ordinary
principles of negligence to the plaintiff. A
prerequisite of any such duty is that there
be the necessary degree of proximity of
relationship. The touchstone of its
existence is that there be reasonable
foreseeability of a real risk of injury to
the visitor or to the class of person of
which the visitor is a member. The measure
of the discharge of the duty is what a
reasonable man would, in the circumstances,
do by way of response to the foreseeable
risk."

7. In the paragraph in their judgment immediately following their quotation of that passage, the majority in Zaluzna's Case said:-

". . . the fact that the respondent was a
lawful entrant upon the land of the appellant
establishes a relationship between them which
of itself suffices to give rise to a duty on
the part of the appellant to take reasonable
care to avoid a foreseeable risk of injury to
the respondent."

8. Paragraph 5 of the statement of claim as finally amended, that paragraph dealing with the occupier/invitee relationship between the parties, does not specifically plead that the duty owed was in tort or contract or in both. However, the facts seem to me to be sufficiently pleaded to establish a duty in both so that the duty owed the plaintiff, whether in contract or tort, given the relationship, is a duty to take reasonable care to avoid a foreseeable risk of injury to the plaintiff while engaged on the contract which brought him onto the land. See Maclenan v. Segar (1917) 2 KB 325 and Jones v. Brown, an unreported decision (1 November 1985) of the New South Wales Court of Appeal.

9. Assuming that the plaintiff makes out his case that the defendants engaged to erect and maintain scaffolding from which he should carry out the work he undertook to do, I would be satisfied that there was such an implied term in the contract between the parties as is pleaded. I am satisfied that there was a further duty in contract and in tort arising out of the very relationship between the parties. I turn to s.17A of the Act and to the Regulations.

10. Section 17A of the Act provides that any person who acts as a scaffolder shall, unless he is the holder of a certificate of competency as a scaffolder, be guilty of an offence against the Act. A scaffolder, by s.5 of the Act, is a person engaged in the work of erecting, altering or demolishing scaffolding which is so placed that a person or object falling from it could fall a distance of 3.048 metres (10 feet).

11. The Regulations with which I need concern myself are in the following terms:-

"73. Any person who directly or by his
servants or agents (including every
independent contractor from time to time
engaged in that work) carries out any
building work shall take all measures that
appear necessary or advisable to minimise
accident risk and to prevent injury to the
health of persons engaged in 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;

(14)cause measures to be taken to ensure

that scaffolding materials, tools and
other objects and materials (including
waste material) shall not be thrown,
tipped or shot down from a height where
they are liable to cause injury, but
shall be properly lowered; in any place
where proper lowering is not practicable
and also where any part of a structure
is being demolished or broken off he
shall cause adequate steps to be taken,
where necessary, to protect persons from
falling or flying debris;

(16)take all practicable precautions by the

use of adequate temporary guys, stays,
supports and fixings or otherwise to
prevent danger to any person through the
collapse of any part of a building or
structure during any temporary state of
weakness or instability of the building
or structure or part before the building
or structure is completed;
"87.(3) Standards - The base of every
standard shall bear upon a firm footing.
Where there is a possibility of settlement of
any standard then such standard shall be
provided with a foundation of such size and
of such strength as to spread the load from
the standard over a large enough area to
prevent settlement. . . ."

12. There was a conflict between the plaintiff's evidence and that of the second defendant. The first defendant gave no evidence.

13. The plaintiff gave evidence that on or about 10 or 11 March 1982 he met another bricklayer, Peter Tijan, in the Croatia Deakin Soccer Club. Tijan told the defendant Tomas in the presence of the plaintiff that, because he was too busy at Bateman's Bay, he was unable to do a job for the defendants which he had earlier agreed to do. The defendant Tomas then offered the job to the plaintiff at a rate of $230 per thousand. The plaintiff's normal rate at the time was $220 per thousand. The plaintiff assumed that he was being asked to work on what he described as a normal house.

14. Next day the plaintiff went with his partner and labourer, Tomislov Maricic, to the site where he met Mr Peraic between 7.30 and 8 a.m. When he got there he saw that it was a very high house. He told Peraic that he could not do the job for him because it was so high and that he hadn't got a scaffold for it nor could he provide one. Peraic said to him that he would order the scaffold and build it for him. The plaintiff said he was not happy to work on the house because it was very high and very dangerous and Peraic offered him an extra $150 on account of the erection of the gable. Peraic said that he would go straight away to Fyshwick and would have the scaffold ready early the following morning.

15. The following morning the plaintiff returned with Mr Maricic. The scaffolding was not there. Mr Peraic came shortly after. The scaffolding arrived somewhere between 11 and 12 o'clock. Straight away Mr Peraic took some of the scaffolding from the truck and carried it inside so that he might begin to erect it. He asked the plaintiff to help him start to build the scaffolding. The plaintiff said he would assist in erecting only a couple of frames because he had to get on with his job of laying bricks. The plaintiff helped Peraic build a double three framed scaffold, with the top scaffold between 14 and 15 feet above the ground.

16. Mr Peraic erected the scaffolding directly onto the ground without putting planks underneath the standards. The plaintiff pointed out to him the need to place such planks for safety's sake but Peraic said that he knew what to do because he had worked elsewhere, presumably doing similar work. When the three frames were erected the plaintiff began to lay bricks. He started on the front of the terrace, on the north wall, and worked towards the west. Eventually the plaintiff began to work on the south wall by which time the appropriate scaffolding to enable the brick work to be done on that wall was ready.

17. The plaintiff's equipment consisted of a concrete mixer, a wheelbarrow, a trowel and string lines, some plywood and some planks. He brought the planks to the site but did not make use of them in the erection of the scaffolding.

18. At about lunchtime several days later it began to rain heavily and the plaintiff went home. The next morning he went to the site and saw the scaffolding which had been erected near the southern side of the house leaning away from it. At one corner its supporting standard had sunk into the ground. The plaintiff was left with two choices. He might go home or he might adjust the scaffolding and start to work from it. He discussed with Mr Maricic what to do. A man called Mark Kapitanovic who had been working on a site in the same street came over and helped Mr Maricic to lift up the scaffolding while the plaintiff attempted to put under the standards some offcuts of floor joists measuring 9 inches by 2 inches to support the standards and the scaffolding. As he did so something, he could not remember what, came down on his back. He was seriously injured.

19. Mr Peraic gave evidence of a conversation between the plaintiff and him at the soccer club. He was employed at the time, he said, at the Parliament House by a firm of formwork contractors. At the same time he was engaged with the first defendant in building a house at 52 Coningham Street. He said that he spoke with Mr Tijan and that the plaintiff was present too. When he first saw the plaintiff and Mr Tijan there was, he said, nobody else present. Mr Tijan told him he could not do the brickwork but said that the plaintiff had come from a holiday and had not got a job so that he could start the brickwork straight away. He said that Mr Tijan said something about $230 per thousand and that the plaintiff agreed that he would do it at that figure, supply scaffold and finish the job. He said that some half to three quarters of an hour later his partner, the first defendant, came to the club. He said there was no discussion at all with the first defendant except that he said to him, "We have to give the job to (the plaintiff) because Mr Tijan, they haven't got time, they're busy to finish it up." There was no further conversation.

20. He said that after he left the club that night and perhaps half an hour after he got home he received a phone call from the plaintiff who said that he did not have enough scaffolding to finish up the gable. He said that the plaintiff said to him, "I have to hire some scaffold for them to finish the gable". By this I understood him to mean that he was saying that the plaintiff was requesting him to hire some scaffolding to enable him and Mr Maricic to finish the brickwork on the gable. Mr Peraic agreed.

21. The next day he said he went to the site at about eight o'clock in the morning to find the plaintiff and Mr Maricic "building the scaffold and mixing the mud".

22. He said that the plaintiff then asked him to get the scaffold about which they had talked. He went to Acrow Pty Ltd and hired frames from them. I am satisfied on all the evidence, including Exhibit N, that the defendants, through Mr Peraic, hired frames, braces and connections from Acrow Pty Ltd. They did not hire planks. It may be that some of the planks used were supplied by the defendants but I am satisfied that, at the least, a number of planks were supplied by the plaintiff.

23. Mr Peraic said that he returned to the site at about 11 or half past 11 that morning and was present when the trucks arrived with the frames which he had ordered.

24. Asked why he was not working at Parliament House on that day, he said that he had injured his right ankle, that it was very swollen and that on the day the frames were delivered he could walk only with difficulty, using a small stick. He said that the plaintiff and Mr Maricic handled the scaffold, that he was there but could not recall that he had "hold first frame or not". He said that he was standing there for half an hour or so and then he went away. By the time he went away the plaintiff and Mr Maricic had put up a few frames of scaffolding from the garage to the north side.

25. In cross-examination it became plain that Mr Peraic denied that he had played any part in the erection of the scaffolding at all.

26. I am satisfied that the version of the conversation and the events surrounding it at the Croatia Deakin Soccer Club given by the plaintiff was substantially correct and I am not prepared to accept the version given by Mr Peraic. Mr Anton Tomas, the first defendant, was not called to give evidence and this assumes, I think, a greater importance than would normally be the case when a witness who might assist a party's case is not called to give evidence. See Jones v. Dunkel [1959] HCA 8; (1959) 101 CLR 298. I also accept the accounts of the plaintiff and Mr Maricic concerning the events at the site in preference to those of Mr Peraic. I do not doubt the evidence given by Sister Zoppke that Mr Peraic suffered an injury to his ankle on 8 March 1982 and that he remained off work at the Parliament House project until at least 19 March 1982. I am not, however, prepared to accept that he was prevented by that injury from doing the work on the scaffolding which the plaintiff said he did. In his answers to interrogatories, Mr Peraic acknowledged that he had assisted in the erection of some of the scaffold provided to the plaintiff, part of the fram of the scaffolding.

27. In all the circumstances I am satisfied that the defendants, through Mr Peraic, undertook to build the necessary scaffolding from which the plaintiff might perform the bricklaying he had undertaken to do. I am satisfied that the plaintiff gave some assistance to Mr Peraic at an early stage but that he ceased to render such assistance shortly thereafter and the rest of the scaffolding was completed as necessary by Mr Peraic and Mr Maricic.

28. The defendants, engaged as they were on building work within the meaning of the Ordinance, were therefore required to provide suitable and safe scaffolding for all work which could not be done safely by a person standing on permanent or solid construction. The arrangement between the parties was such that even though it might have been said that the plaintiff, admittedly a bricklaying subcontractor, was engaged in building work within the meaning of the Ordinance and Regulations and therefore responsible for the provision of safe scaffolding, the responsibility fell upon the defendants. See Armstrong & de Mamiel Constructions Pty Ltd v. Virenius [1981] FCA 184; (1981) 38 ALR 673. On the facts the plaintiff's responsibility could not have been co-extensive with that of the defendants.

29. Once fixed with the responsibility for the provision of safe scaffolding, the defendants continued to be responsible for maintaining it in a safe condition. Cervellone v. Besselink Bros. Pty Ltd (1984) 55 ACTR 1 at p 8.

30. The evidence does not permit a finding as to the precise object which struck and injured the plaintiff. I am satisfied from Mr Kapitanovic's evidence that it was a piece of plywood but whether large or small, mudboard or plank, I cannot say. I am, however, satisfied that it was one of a number of objects which fell when the scaffold collapsed as Mr Maricic and Mr Kapitanovic tried to lift it back into place against the wall and the plaintiff attempted to insert one of the offcuts referred to above.

31. I am satisfied that the defendants were in breach of their duty to provide suitable and safe scaffolding in conformity with the requirements of the Regulations. In particular they failed to comply with Regulation 87(3). This failure was in the face of a warning given Mr Peraic, as I find, by the plaintiff. The warning was ignored. It was foreseeable that rain would so soften the ground that standards used in the scaffolding which had inadequate bases would sink into the softened earth. Had the plaintiff been injured as a result of the collapse of the scaffolding as he walked past it, there would be no difficulty about liability. However, contributory negligence is pleaded against the plaintiff, it being said in substance that he failed to take due care for his own safety.

32. A plaintiff may expose himself to some degree of risk rather than have his activities curtailed. See A.C. Billings & Sons Ltd v. Riden [1957] UKHL 1; (1958) AC 240. The principle to be extracted from that case appears in the words of Lord Reid with whom Viscount Simonds concurred and Lord Cohen agreed at pp.252-3. Lord Reid said:-

"If the plaintiff knew the danger, either
because he was warned or from his own
knowledge and observation, the question is
whether the danger was such that in the
circumstances no sensible man would have
incurred it or, in other words, whether the
plaintiff's exposing himself to the danger
was a want of common or ordinary prudence on
his part. If it was not, then the fact that
he voluntarily or knowingly incurred the
danger does not entitle the defendant to
escape from liability."

33. His Lordship said also, at p.255:-

"I agree with Hallett J. that the question is
not whether she realized the danger but
whether the facts which she knew would have
caused a reasonable person in her position to
realize the danger. But in considering what
a reasonable person would realize or would do
in a particular situation we must have regard
to human nature as we know it, and, if one
thinks that in a particular situation the
great majority of people would have behaved
in one way, it would not be right to say that
a reasonable man would or should have behaved
in a different way. A 'reasonable man' does
not mean a paragon of circumspection."

34. Although the plaintiff was an independent contractor, it seems to me that in the circumstances his position is to be equated very much with that of a workman employed under a contract of service. That being the case it is relevant in considering his conduct to take account of what was said by Gibbs J (as he then was) in Commissioner of Railways v. Ruprecht [1979] HCA 37; (1979) 142 CLR 563 at p 568:-

". . . in deciding whether the respondent was
guilty of contributory negligence, one may
consider, as part of all the circumstances,
such things as inattention born of
familiarity and repetition, and the man's
preoccupation with the matter in hand, with a
view to deciding 'whether any of these things
caused some temporary inadvertence to danger,
some lapse of attention, some taking of a
risk or other departure from the highest
degree of circumspection, excusable in the
circumstances because not incompatible with
the conduct of a prudent and reasonable man':
Sungravure Pty. Ltd. v. Meani, per Windeyer J
((1964) [1964] HCA 16; 110 CLR 24 at p 37)."

35. Applying the principles to be extracted from those statements, it seems to me that what the plaintiff was what the great majority of people in his position did would have done. He did have the assistance of two men when he tried to create a gap beneath the standard into which he might have put the offcut as a base plate.

36. I also take into account the fact that in a sense the action taken by the plaintiff was for the benefit of the defendants although not to the same extent as has on a number of occasions been held to excuse a workman from negligence when he engaged in a dangerous activity in the interests of his employer. See, for example, Neil v. Harland & Wolff Ltd. (1949) 82 LlLRep. 515 and Norris v. Syndic Manufacturing Co. Ltd. (1952) 2 QB 135. See also Martiniello v. Antonio Giorgio Pty. Ltd. an unreported judgment of this Court (Smithers J) delivered 20 March 1970.

37. In the circumstances of this case I ascribe little weight to that factor but it is something to be placed in the scales.

38. The evidence does not permit of a positive conclusion that the planks or plywood which fell from the scaffolding were placed on the scaffolding by Mr Peraic and Mr Maricic. On the balance of probabilities, I think it more likely that they were placed there by the plaintiff, probably with the assistance of Mr Maricic. He was, after all, the person who was using the scaffolding and who would need to have a footing from which to work. Nothing in the evidence suggests that Mr Peraic engaged to lay the planking or plywood which formed the platform from which the plaintiff worked. Exhibit N makes no reference to planks or materials which might have been used as a platform. In any event the mudboard which fell at the time of the accident must have been placed there either by the plaintiff or by Mr Maricic. The presence of the mudboard on the platform indicates that on the balance of probabilities the platform had been stable enough for the plaintiff to work from it. I think the probabilities are that it was the partial settling of the framework of the scaffolding which led to the situation where the platform and any items which might have been on it fell at the time when Mr Maricic and Mr Kapitanovic were attempting to lift it so that the plaintiff might place the offcut under one of the standards. It would seem more likely than not that scaffolding framework erected by someone not duly qualified would be so affected by the settlement which had taken place that any platform or objects on the platform which would otherwise have been secure would fall. Such a danger would not necessarily be immediately apparent to even a quite circumspect man in the position of the plaintiff.

39. In all the circumstances I think that the defendants were responsible for the plaintiff's injury.

40. At the same time, I think that a prudent man in the plaintiff's position would have appreciated the possibility that something might fall from above when an attempt was made to correct the settlement of the standard. Admittedly, two men were assisting by lifting the framework of the scaffolding but I think it should have been obvious to him that there was a risk involved of some collapse of the framework and, particularly, that some of the platform or any objects on it might fall.

41. I think, therefore, that the plaintiff contributed to his own damage. Doing the best I can I assess the amount of that contribution at 25%.

42. I am satisfied that the plaintiff was seriously injured. Immediately after the accident he felt much pain in the lower part of his back. He was taken by Messrs Maricic and Kapitanovic to the Woden Valley Hospital where he remained for about two and a half hours before going home. Thereafter he was attended every day by a doctor who was apparently a locum on holiday from England. Subsequently he was referred to an orthopaedic surgeon, Dr Calder, at the Royal Canberra Hospital. On 29 March 1982 Dr Calder reported that he had received a history which was quite different from that he gave in evidence. Oddly enough, Dr Corry, a specialist in rehabilitation medicine, reported that he had received yet another history. I am, however, satisfied that for some reason both doctors were mistaken as to the histories and that the account given in evidence by the plaintiff of what happened, supported as it was by the evidence of Messrs Maricic and Kapitanovic, is a correct account. It is consistent with what the plaintiff told Mr Peraic whose daughter, he said, received a phone call from the plaintiff on the day that he hurt himself. Mr Peraic said, "I went right away to his place and asked him what is happened and he said, the mudboard fall down and hit in the ribs."

43. When Dr Calder first saw the plaintiff he complained of pain in the right lumbar region with pain in the right buttock and radiation down to the back of the right knee and that he had been virtually immobilised since the accident. Examination revealed a man in considerable discomfort. There was an old bruise in the right flank and there was bilateral paraspinal muscle spasm with marked diminution of all spinal movements. There was no sensory abnormality in either leg. Straight leg raising was 80% on both sides and the reflexes were symmetrical and normal. X-rays showed a fracture of the right transverse process of the L3 vertebra with no displacement. He was admitted to hospital for bed rest and analgesia. He remained in hospital for several days and was then discharged home. On 21 April 1982 he still had pain in the right leg, this time extending down to the toes. Reporting on 7 May 1982, Dr Calder diagnosed a probable right L5 nerve root lesion, probably due to disc rupture. He reviewed the plaintiff on 26 August 1982. At that time the plaintiff could not tolerate discography and had not responded to conservative measures. Dr Calder referred him to Dr Chandran, a neurosurgeon.

44. Dr Chandran commenced with conservative treatment but, on 4 November 1982, he operated on the plaintiff. He found a big bulge over the L4-5 disc which was quite degenerate and which he excised. Reporting on 14 December 1982, Dr Chandran said :-

"The history given by this man suggests an
injury to his back. He did not have any
previous symptoms in his back. Plain x-rays
of his spine done on 29.3.82 showed minor
degenerative changes at L4-5 level. There
was thus some asymptomatic degeneration going
on in his lumbar spine which was aggravated
and led to damage to his disc at this level.
There was a bulging disc compressing his
nerve root beside the disc rupture itself
causing him back pain."

45. In 1983 Dr Chandran reviewed the plaintiff on four occasions. The fusion did not take completely at the L4-5 level. Dr Chandran thought that despite any possible measures, whether conservative or surgical, the plaintiff would not be able to return to work as a bricklayer. He considered that with his poor educational background and poor facility in English his prospects of gaining gainful employment were poor but he thought that with improvement it was possible that he might eventually consider some form of light work.

46. On 27 September 1985 Dr Chandran attempted a discogram but it was not possible to enter the disc space because of the previous operation and the presence of bone grafts. Further x-rays showed that the L4-5 fusion was not satisfactory and there were indications of instability. The L5-S1 level had fused satisfactorily. Revision of the L4-5 fusion was suggested. At the time of the hearing further surgery was expected.

47. Dr Gnanaharan, the plaintiff's general practitioner, considered the plaintiff unable to return to "his original form" or to be able to do any manual work of any major kind. Dr Corry summarised his view of the plaintiff as follows:-

"I think after that type of low back surgery,
the risks of heavy labour are quite high, so
that I would certainly not advise him to go
back to heavy labouring work such as
bricklaying, even if he was 100% - apparently
100% cured."

He was then asked,

"And you have referred to him as at best he
would seem capable of doing light part time
work. Is that how you see him in the future
or not?"

He replied, "Yes, that was my opinion at that time."

48. I am satisfied on all the evidence that the plaintiff is unable to return to heavy work such as bricklaying or labouring, that it is unlikely that he would be able to carry out any duties as a supervisor, principally because of his physical condition but in part because of his poor education and lack of command of English. Dr Corry, against the background of his speciality in rehabilitation medicine, assessed his chances of finding suitable employment in Canberra as very poor. I think that at his age they are negligible.

49. Two other factors have to be taken into account. When he examined the plaintiff in May 1985, Dr Corry noted that he appeared to have a circulatory problem in his legs, particularly in the right. He was not examined as to this, either in chief or in cross-examination. The cross-examination on this aspect was directed to Dr Gnanaharan who conceded that the greater the period between an injury and the onset of signs of vascular deficiency the less possibility there was that the signs were due to injury.

50. The second matter relates to the possibility that the plaintiff might, because of the nature of his work have in any event been forced to stop work at some date earlier than his 65th birthday or even his 60th birthday. There was some suggestion in the evidence that he had sustained a back injury in 1978 but even if this was so I am satisfied that it was not the cause or even a contributing cause of the condition from which he now suffers and that for that one must look to the accident, the subject of the claim. As Dr Chandran's evidence shows, there was some degeneration in the plaintiff's spine but I am not satisfied that any condition in existence before the accident was the cause of the plaintiff's incapacity or would have incapacitated him at least for many years. However, I take into account the evidence that very few bricklayers work until their 60th birthday as bricklayers and take some account of the vascular difficulties which he was having with his legs and deal with his claim for damages accordingly.

51. I proceed, therefore, on the basis that he would have been in any event not able to work beyond his 58th birthday at his trade of bricklaying. Such an assumption takes, I think, adequate account of unfavourable vicissitudes. I do not think that but for his accident he would have been able to obtain work as a supervisor after finishing perforce his work as a bricklayer. His English was too poor and his general educational background insufficient, I thought, for this.

52. The question of damages for loss of earning capacity is rendered difficult because of the paucity and what I consider to be the inaccuracy of the plaintiff's financial records. I do not accept as accurate his income tax returns for the years ended 30 June 1979 and 1981. I am, however, not dealing with the question of the accuracy of tax returns but with the actual earning capacity of the plaintiff at the relevant time.

53. I am satisified on all the evidence that the plaintiff was able to earn at about the time of the accident an average gross figure of the order of $1,000 per week as a bricklaying subcontractor. This figure takes no account of the possibility that the plaintiff might not be working because of recessions in the building industry or, indeed, of times when he would not be able to earn money because he was "between jobs". If he were working as an employee bricklayer, I am satisfied he could earn $85 per day nett or $425 per week. When working as a bricklaying subcontractor he had to pay half his earnings to his partner and labourer, Mr Maricic. Allowance had also to be made for the building stand-down which normally occurs at Christmas/New Year in Canberra.

54. Senior counsel for the plaintiff submitted that it was appropriate to take a figure of $1,000 per week as the gross usual earnings of the plaintiff when he was in fact working with Mr Maricic, to discount that to allow for the various contingencies, to which I have referred, to a figure of $35,000 per annum representing a nett productive period of 35 weeks in every year. Of that the plaintiff's share would be $17,500. In respect of the period since 1983 counsel was prepared to concede a nett average earning loss of $11,000 per annum. I am satisfied that that figure is a reasonable one and allows for an approach to the question of the plaintiff's economic loss which is moderate and fair to the defendants. In accepting his counsel's approach, I am making due allowance for the fact that I have had considerable difficulty in accepting and, indeed, to some extent in understanding the plaintiff's evidence as to his financial loss.

55. I am satisfied from consideration of Exhibit H that presently bricklayers are able to earn at least 35% more than they were able to earn in 1982. 135% of $11,500 amounts to approximately $300 per week nett after taxation and I allow for continuing loss on that basis. I think I should allow that loss to the plaintiff's 58th birthday on the basis, however, that he would work 38 weeks in each year. Leaving aside the annual standdown that represents a loss of productivity for the causes earlier mentioned of approximately 20%. That is, I think, a sufficient allowance. The result is a nett loss of $325 per week after taxation.

56. For past economic loss from the date of the accident, therefore, I allow $63,000. For future economic loss I allow $153,400. This has regard to the fact that I have assessed the probable retirement age at 58 years but the discounts which have been built into the figures set out above are such as, I think, not to require any further discount on account of unfavourable contingencies. They have, I think, all been adequately taken into account.

57. So far as general damages other than future economic loss are concerned, I accepted the evidence of the plaintiff and his wife as to the measure of his disability. For those general damages I allow $45,000.

58. For out-of-pocket expenses I allow $5,149.10 and for a Fox v. Wood ((1981) 148 CLR 348) component, I allow $6,414.90.

59. For interest, taking into account the payment of $19,870.34 made already by or on behalf of the defendants to the plaintiff and assessing his general damages to date at $20,000, I allow $23,150.

60. I allow $3,000 for the cost of the operation which the plaintiff was to undergo shortly after the hearing.

61. I assess the plaintiff's damages, therefore, at $299,114. I think it just and equitable to reduce that amount by 25% to $224,335 on account of the plaintiff's contributory negligence. There will be judgment for the plaintiff accordingly.

62. Since handing down my reasons herein I have accepted evidence that the actual expenses incurred in respect of the operation which the plaintiff was expected to undergo totalled $4,820.65, $1,820.65 more than I had allowed. The plaintiff's damages therefore amount to $300,934.65 but I think it just and equitable to reduce that amount by 25%. There will accordingly be judgment for the plaintiff for $225,701 and costs.