Giovanni Andriolo v G & G Constructions Pty Limited; Mag Constructions Pty Limited; General Accident, Fire and Life Assurance Corporation Limited and Mag Constructions Pty Ltd [1988] ACTSC 41 (14 July 1988)

SUPREME COURT OF THE ACT

GIOVANNI ANDRIOLO v. G. & G. CONSTRUCTIONS PTY LIMITED; M.A.G. CONSTRUCTIONS
PTY LIMITED; GENERAL ACCIDENT, FIRE AND LIFE ASSURANCE CORPORATION LIMITED and
M.A.G. CONSTRUCTIONS PTY LTD
S.C. No. 1247 of 1983
Negligence - Statutory Powers and Duties - Damages

COURT

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

CATCHWORDS

Negligence - plaintiff fell from scaffolding plank at building site - plaintiff director of second defendant company - second defendant sub-contractor of first defendant.

Statutory Powers and Duties - breach of statutory duty - whether defendants were in breach of duty under safety regulations - whether first defendant not liable because the work leading to the plaintiff's injury was delegated to second defendant.

Damages - contribution between tortfeasors - method of apportionment of damages between defendants when plaintiff contributorily negligent.

Damages - major injuries to elbow and shoulder - assessment of loss of earning capacity - method of calculation where plaintiff unable to continue pre-injury work but continues to be paid similar rate to that of co-directors - whether measure of loss to be taken as cost of hiring substitute worker.

Hawkins v. Clayton (1988) 62 ALJR 241

Voli v. Inglewood Shire Council and Another [1963] HCA 15; (1963) 110 CLR 74

Stevens v. Brodribb Sawmilling Company Proprietary Limited [1986] HCA 1; (1986) 160 CLR 16

Australian Safeway Stores Proprietary Limited v. Zaluzna [1987] HCA 7; (1986) 162 CLR 479

Glass and McHugh, The Liability of Employers 2nd ed. pp 249-250

Davey v. Skinner (1961) SR (NSW) 648

H.C. Buckman and Son Pty. Limited v. Flanagan and Another [1974] HCA 30; (1974) 133 CLR 422

Australian Paper Manufacturers Ltd. v. Conyers (1962) SR (NSW) 682

Kakouris v. Gibbs Burge & Co. Ltd. (1970) 44 ALJR 384

Nicol v. Allyacht Spars Pty. Ltd. (1987) 61 ALJR 640

Barisic v. Devenport & Ors. (1978) 2 NSWLR 111

Nathan v. Vos (1970) SASR 455

Luntz, Assessment of Damages 2nd ed 1983

Dal Zotto v. Bonnani [1980] FCA 97; (1980) 47 FLR 239

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

Stepke v. NCDC & Others (1978) 21 ACTR 23

Tibbett v. Davidson (1973) 1976 WAR 24

HEARING

CANBERRA
14:7:1988

ORDER

There be judgment for the plaintiff in the sum of $218,349.55.

The defendants pay the plaintiff's costs.

DECISION

Pleadings

The plaintiff claims damages for personal injuries received on 19 August 1982 when he fell from a scaffolding plank on a building site at Yarralumla where a block of two-storey townhouses was under construction. The first defendant (G. & G.) was the head building contractor and the second defendant (M.A.G.) was the sub- contractor to G. & G. for the brickwork. The plaintiff was a director and employee of M.A.G. Pursuant to an agreement between the two defendants G. & G. was to supply the scaffolding for use by bricklayers for work to be done above ground level. To this end G. & G. had engaged a scaffolding sub-contractor to erect Cyclone tubular steel scaffolding. The plaintiff alleges as against each defendant negligence and breach of the Scaffolding and Lifts Regulations. There are also contribution proceedings between the two defendants.

2. The precise facts giving rise as a matter of law to the alleged duty of care owed by G. & G. to the plaintiff for the purpose of the claim in negligence are not easily distilled from the statement of claim. No point was taken on this aspect by the defendant, but it is very difficult to decide whether there has been a breach of the duty of care until one has a look at the circumstances from which the duty of care is alleged to have arisen. Paragraphs 2 to 5 of the statement of claim allege that it was a term of the agreement between G. & G. and M.A.G. that G. & G. would provide safe access from ground level to the scaffolding platform and from the scaffolding platform to ground level, and that G. & G. was in breach of that term. Although the plaintiff may not as a matter of contract law rely upon a breach of a term of a contract to which he was not a party, I think it may be said that a contract may give rise to a tortious duty of care owed to a stranger who might reasonably be foreseen by the parties as likely to be harmed as a consequence of a breach of the contract.

3. In Hawkins v. Clayton (1988) 62 ALJR 241 a majority of the Justices of the High Court took the view that the contractual relationship between a solicitor and a testator created sufficient proximity between the solicitor and the executor of the testator's will to give rise to a duty of care in negligence on the part of solicitor owed toward the executor. If I read the minority judgment correctly, Mason C.J. and Wilson J. did not disagree that the terms of a contract might give rise to sufficient proximity so as to create a duty of care owed by a contracting party to a stranger, but they thought that the terms of the contract in the case before them did not do so. In Voli v. Inglewood Shire Council and Another [1963] HCA 15; (1963) 110 CLR 74, an architect who designed a building for a shire council was held to be under a duty of care to persons reasonably expected to be in the building. At p 85 Windeyer J. discussed the scope of the duty as to which his Honour said that "his contract with the building owner is not an irrelevant circumstance. It determines what was the task upon which he entered. If, for example, it was to design a stage to bear only some specified weight, he would not be liable for the consequences of someone thereafter negligently permitting a greater weight to be put upon it".

4. Alternatively, a duty of care is now recognized as owed by an entrepreneur not only to its employees but to independent contractors who might reasonably be foreseen as likely to be harmed by a failure to take proper care, and that duty extends to employees of the sub-contractor. That was the effect of the decision of the High Court in Stevens v. Brodribb Sawmilling Company Proprietary Limited [1986] HCA 1; (1986) 160 CLR 16.

5. The plaintiff has also included a claim against G. & G. as "an occupier of the site" who owed to the plaintiff as a person "lawfully on the site .... a duty to warn him of unusual dangers of which it knew or ought to have known". The law relating to occupier's liability is now assimilated to the law of negligence (Australian Safeway Stores Proprietary Limited v. Zaluzna [1987] HCA 7; (1986) 162 CLR 479). It would follow, in my view, that if the plaintiff was a person whom the occupier should have foreseen as likely to be present on the site, then the occupier owed the plaintiff a duty to take reasonable care for his safety. The issue as to whether G. & G. was an occupier of the site was not actively pursued at the hearing and, because of the other findings I have made, it is not necessary for me to determine it.

Liability: Facts

6. In some respects the primary facts are difficult to ascertain because of the direct conflict between the evidence of the plaintiff and his witnesses and the evidence given on behalf of G. & G., mainly through one of its directors, Mr. Paul Bisa. I do not think it necessary to set out the evidence in detail. I shall state shortly my conclusions on the facts and refer to the evidence only where I think it is necessary.

7. The building under construction was a block of townhouses, something like a row of terrace houses. Each townhouse consisted of two storeys and each was separated from the other by a double brick wall on either side extending from ground level to the ceiling or roof level. Within each townhouse was a concrete staircase giving access from the ground floor to the first floor level and reverse. The external walls to the top of the ground floor were constructed in double or solid brick; exterior walls at the first floor level were brick veneer. A floor was provided at the first floor level in the form of a concrete slab which rested on the exterior brick walls. The construction of the brick veneer first floor walls was carried out from steel planks laid on the scaffolding and set parallel to the walls of the building.

8. It is established that the scaffolding ran around the whole of the perimeter of the building at the first floor level, but there is a real dispute as to whether the planks were continuous and in particular whether there were planks adjacent to the area where the plaintiff had been working on the morning of 19 August 1982 prior to his injury.

9. The plaintiff's injury occurred just before midday. The plaintiff had been laying bricks at the first floor level. Present at the same time but working at an immediately adjoining unit were his co-employees and co-directors, Mr. Ado Forner and Mr. Mijo Spudic. The plaintiff had laid bricks to a height of at least 1.2 metres at the first floor level. The three men wanted to get to the ground because it was lunch time. They climbed down the outside of the scaffolding. Mr. Forner was ahead of the plaintiff. When the plaintiff reached a transom about one metre from the ground he saw a timber plank five to six metres in length and about twenty-five centimetres in width resting at one end on the ground and at or near the other end on the transom. Mr.Forner walked down the plank on to the ground. The plaintiff went to follow him. He placed his weight or some of it on the plank. He then went to shift his weight onto his left foot. As he did so, his foot slipped from the edge of the plank and he fell, landing on his out-stretched left hand.

10. Before going on to discuss whether the plaintiff has proved any breach of duty on the part of either defendant, some other factual issues need attention.

11. Did the plaintiff need to climb down the scaffold? Clearly it was impractical for the plaintiff to climb over the freshly laid brickwork in order to use the internal concrete staircase. However, it was suggested on behalf of the defendants that instead of climbing down the outside of the scaffold, he could have moved along the scaffold planking to one of the adjacent townhouse units where the brick walls had not been laid and there he could have squeezed through the half metre space between the timber studs and then gone down the internal stairway. Indeed, the plaintiff agreed in cross-examination that he could have done so. He nevertheless maintained that the scaffolding, or the planks (sometimes referred to as the walkway) or both, did not extend to the areas immediately adjacent to where he and the two other men had been working. The evidence of Mr.Spudic and Mr. Forner was to similar effect. They thought that although the scaffolding was fully in place there were no planks on either side of where they had been working. Mr. Forner was less definite about planks on the right-hand side.

12. The plaintiff said that he climbed up the scaffold to get to the first floor level that morning. Mr. Forner, on the other hand, said that they used the internal staircase.

13. Mr. Paul Bisa, director, shareholder and foreman of G. & G. and the person in charge of the sub-contractors on behalf of G. & G., was adamant in his evidence that the scaffolding with continuous planking extended around the perimeter of the building at the time of the accident. Mr. Alan Johnson, proprietor of A. and L. Scaffolders, the scaffolding sub-contractor, said that he and his employees had constructed the scaffolding to first floor level with a working platform or walkway around the building. Ledgers had been removed to allow access into the building through the front doorway at ground level of two units on each side of the building. A day or two before the plaintiff's accident the walkway was "fully decked". A day or two after the plaintiff's accident Mr. Johnson saw that there were "quite a few access points to the scaffolding" at first floor level and that these access points were "through window openings or whatever". However, Mr. Johnson also said that from time to time the scaffolding was adjusted and the height of sections of the planking or working platform was raised to cater for bricklayers and other tradesmen who wanted to work at a higher level or in an awkward corner. During the week of the plaintiff's accident there were scaffolders on the site every day almost all day.

14. The possibility that a section of the scaffolding planking might be raised from time to time was adverted to by Mr. Paul Bisa when under cross-examination. He conceded, somewhat unexpectedly one might think, that there were occasions when the bricklayers on the job might get the scaffolders to raise the working platform or part of it as the job demanded. When it was suggested that adjacent areas of the scaffolding planking were frequently not at the same level, Mr. Bisa replied, "It depends on how the bricklayers and scaffolders went along". Curiously, neither the plaintiff nor his witnesses made reference to that possibility.

15. Having seen the plaintiff and his witnesses and Mr. Bisa in the witness box, I approached the evidence of each of them with some scepticism. I have no hesitation about accepting the evidence of Mr. Johnson. Whatever happened that day, the evidence does not, in my view, support a conclusion that the plaintiff and his colleagues were skylarking. They were mature tradesmen and it would have been a simple matter to go down the internal staircase if access to the concrete slab from the scaffold was free and unimpaired. I think that there was probably something about the adjacent areas of the walkway which led the plaintiff and his colleagues to adopt what might have appeared, even subconsciously, to be the more convenient course of climbing down the outside of the scaffold. Most likely the continuity in the scaffolding planking was broken because part of the planking had been raised or was in the process of being adjusted. That, however, did not mean that it would have been impossible for the plaintiff to walk or climb over it in order to get to a position where it was then possible to pass between the joists on to the concrete slab, but it did provide a disincentive.

16. Had there been prior complaints about the scaffolding? The plaintiff and Mr. Forner were insistent that complaints had been made to Mr. Paul Bisa on many occasions prior to the plaintiff's injury about the absence of stairs or ladders being incorporated into the scaffolding. Mr. Bisa was just as insistent that there had been no such complaints. However, it was not denied that complaint was made by Mr. Forner to Mr. Bisa on the day of the accident, but after the plaintiff had received his injury. Ladders were incorporated into the scaffolding within a matter of days thereafter and also on another project later undertaken by G. & G. where, however, there was no internal access to the higher level within the building itself.

17. After considerable hesitation, I find that I am not able to accept the account given by the plaintiff and his witnesses on this issue of prior complaint. It is an issue on which I think the plaintiff bears the onus. It is curious that with scaffolders on the job every day and nearly all day, at least during the week before the plaintiff's injury, there was no suggestion made to any of them that the scaffolding was deficient because of the absence of ladders. I recognize that it was G. & G. and not the scaffolding sub-contractor who bore the contractual responsibility of supplying proper scaffolding for use by bricklayers. If complaints had been made to Mr. Bisa, it would presumably have been because those complaining wanted to use ladders rather than the internal stairs, but why this should have been so was not satisfactorily explained. There were no complaints of lack of continuity of the scaffolding planking or of difficulty in using the internal stairs. The speed with which the ladders were incorporated into the scaffolding after the plaintiff's injury was, so it was submitted on behalf of the plaintiff, indicative of consciousness on the part of G. & G. of prior complaint, but on reflection I think that it is just as consistent with post-injury complaint, and possibly more so. Another strange feature of the evidence of the plaintiff and his witnesses is that they claim that they complained about the lack of "step-ladders".

18. Where did the timber plank come from? The evidence is that it did not belong to M.A.G., but no witness had ever seen it before the plaintiff and Mr. Forner had descended from the scaffolding. The evidence does not convince me that the plank was placed in position by an employee of G.&G., but it is likely, I think, that one of the sub-contractors placed it in position so that it became, in effect, part of the scaffolding. The significance of this will be discussed in a moment.

Liability - Breach of Statutory Duty

19. The plaintiff alleges as against both defendants breaches of duty under the regulations under the Scaffolding and Lifts Act 1912-1948 (NSW) as applied and modified in the Australian Capital Territory by the Scaffolding and Lifts Ordinance 1957. Counsel for the plaintiff stated that the regulations relied upon were regulation 73(1), regulation 73(2) and regulation 86(1). The statement of claim is deficient, in my view, in that it does not plead facts from which a duty to comply with regulation73 or regulation 86 can be inferred, and probably because it does not identify the regulations: see the suggested forms of pleadings in Glass and McHugh, The Liability of Employers 2nd ed. pp 249-250.

20. Regulation 73(1) and (2) is in the following terms:

"PART V

SAFEGUARDS AND MEASURES TO BE TAKEN FOR
SECURING THE SAFETY AND HEALTH OF PERSONS
ENGAGED IN BUILDING WORK

A. GENERAL

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;

(2) provide and maintain safe means of access to every place at
which any person has to work at any time."

21. Regulation 86(1) is in the following terms:

"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."

22. Regulation 6(1) identifies the persons who are subject to the duty imposed under regulation 86(1). It is in the following terms:

"6.(1) Where the obligation to observe any of the provisions of
these Regulations is not by these Regulations specifically
imposed on any person it shall be the obligation of every
person who directly or his servants or agents-

(a) carries out any building work, excavation work or
compressed air work; or

(b) designs, constructs, erects, sets up or builds, or sets or
places in position, works, uses, tests or maintains any
crane, lift, hoist, scaffolding, plant or gear, or roof
sheathed or intended to be sheathed with asbestos cement
or other brittle material, to comply with the provisions
of these Regulations in regard thereto."

23. It is to be observed that the duties imposed by regulation 73 extend to a person who carries building work through an independent contractor. It is not limited to a person who carries out building work either personally or through servants or agents. In this respect the regulation differs from its New South Wales counterpart: see Davey v. Skinner (1961) SR (NSW) 648; H.C. Buckman and Son Pty. Limited v. Flanagan and Another [1974] HCA 30; (1974) 133 CLR 422. ("Buckman v. Flanagan").

24. By virtue of regulation 6(1), however, the duty to comply with s.86(1) does not extend to independent contractors. It is confined to a person who carries out the activities set out in regulation 6(1) either directly or through his servants or agents. In this respect the sorts of problems that arise from complex sub- contracting arrangements on building projects, which were discussed in Buckman v. Flanagan, may unfortunately not be entirely avoided in the present case. I shall return to these in a minute.

25. For the purposes of the alleged breaches of regulation 73(1) and regulation 73(2), there is no difficulty in finding that both defendants were carrying out building work within the meaning of the regulation, and further that the plaintiff was a person engaged in such building work.

26. It was submitted as a threshhold argument on behalf of G. & G. that it was not liable for breach of statutory duty because the building work being carried out which led to the plaintiff's injury was the subject of a complete delegation from G.& G. to M.A.G. It was submitted, relying on Buckman v. Flanagan, that where the carrying out of the building work which attracts the statutory duty has been wholly delegated to a sub-contractor, the exposure of the sub-contractor to the risk is not itself a breach of duty. The matter of delegation of work or of duty or of both is a complex and difficult one. It is summarised by Glass & McHugh at p 233 in the following terms:

"The extensive statutory codes by which many industries are
regulated normally impose statutory duties on the employer
personally. By necessity, the employer frequently delegates the
performance of these duties to its employees. If they are not
performed, the employer, no matter how blameless, is liable to
persons injured by the breach. When, as occasionally happens, the
injured party is the defaulting delegate, difficult problems are
presented for which no definite solution has yet been found. Proof
by the employer that the employee has unequivocally accepted the
delegation and that his experience made delegation to him
reasonable, has been accepted as a valid defence. But
considerable uncertainty has existed as to the foundation in
principle of such a defence. This uncertainty has been clarified
by recent judicial decisions."

27. The authors go on to consider a number of decisions and in particular Buckman v. Flanagan, in respect of which they say:

".... the true basis of the principle would appear to be that
accepted by Mason J. in the later case, i.e. the rule is one which
specially limits the liability of a defendant who has delegated to
the plaintiff the performance of a task which imposes upon each of
them a statutory obligation in the breach of which the plaintiff
is solely at fault. Although denying liability in the defendant,
it concedes that he is in breach of his duty yet regards the
breach as non-actionable because it came about solely in
consequence of the plaintiff's fault. The fault of the employer
which excludes the defence will usually consist in the failure to
ensure statutory compliance by the employee by means of
instruction and or supervision."

28. I would, with respect, adopt this interpretation of Buckman v. Flanagan and accept the statement of the authors as a correct exposition of the law.

29. I think that the answer to the submission on behalf of G.& G. is that, if there was a delegation or a purported delegation of the obligation of G.& G. to comply with the requirements of the regulations, then that delegation was not to the plaintiff but to M.A.G. In any event it could not be said, in my view, that the plaintiff's injury occurred solely in consequence of the fault of the plaintiff. The argument that G. & G. had delegated its duty to comply with the Regulations to someone else, so as to relieve it from liability to comply with the Regulations, therefrom fails.

The Access Count

30. It was submitted on behalf of each of the defendants that because there was a safe means of access, that is to say, via the internal staircase, then there was no breach of the regulation. However, what is required is the provision of safe means of access as distinct from a safe means of access. If there are several means of access and a plaintiff is injured as a result of utilizing one such means, which happens to be unsafe, then the defendant cannot escape liability: see Australian Paper Manufacturers Ltd. v. Conyers (1962) SR (NSW) 682. It is not necessary for the plaintiff to prove that there was no safe route at all to or from his place of work.

31. Having regard to the intention and purpose of the regulations, the provisions in regulation 73(2) that safe access should be provided to every work place should be construed liberally. In my view, it imports a requirement to provide a safe means of access from the work place as well. In industrial safety legislation something is not safe if it is a possible cause of injury to a worker acting in a way in which a worker can reasonably be expected to act. The worker, however, need not necessarily be expected to act reasonably, and if it is reasonably foreseeable that there is something about the system of work which exposes a worker to injury, whether the worker be lazy or inadvertent or careless, then the system is classified as not safe. Reasonableness is relevant to the concept of foreseeability but not to the behaviour of the worker.

32. In my view it was reasonably foreseeable that bricklayers working at the first floor level might be tempted to climb down the scaffolding rather than use the internal staircase if there was some impediment to gaining entry to the building from the walkway. As I have already found, the continuity of the walkway on the day in question was probably interrupted by the raising of planks by the scaffolders. The timber plank from which the plaintiff fell had by the time of his injury, become part of the scaffolding. Viewed another way, it may be seen as rendering the tubular scaffolding more dangerous than it otherwise might have been. It was dangerous for the plaintiff and his colleagues to climb down the outside of the tubular scaffolding "like monkeys" because there was the obvious danger of slipping or losing grip and consequently falling and sustaining injury. Nevertheless, it is arguable that there was no causal connection between that danger and the plaintiff's injury, because the plaintiff did not slip whilst climbing down the outside of the tubular scaffolding. He fell whilst walking or about to walk on the timber plank. I would think that unless the plank was classified as part of the scaffolding, it might be doubtful whether his injury followed as a consequence of a danger presented by the scaffolding. But as I have said, the plank, in my view, became part of the scaffolding. It represented a danger in that it was not unlikely that someone in the position of the plaintiff would fall as he did. Mr. Bisa agreed that it was necessary for the plaintiff to twist in order to transfer his weight from the tubular scaffolding to the plank. The plank was relatively narrow, on a slope and without handrails. It represented an unsafe means of access and the plaintiff is entitled to succeed against both defendants on the access count. Failure to provide suitable and safe scaffolding.

33. Adhering to my view that the plank became part of the scaffolding, I think that this finding means that the plaintiff is entitled to succeed on the claim under regulation 73(1). The duty is to provide suitable and safe scaffolding, and as I have indicated, the scaffolding was not safe and that lack of safety resulted in the plaintiff's injury.

34. Turning to the claim under regulation 86(1), it is again obvious that my findings lead to the conclusion that the scaffolding was "not suitable and safe for the purpose for which it was intended, as required under the regulation". However, regulation 6(1) casts the duty to comply with a regulation such as regulation 86(1) upon every person who carries out building work or who works or uses any scaffolding either directly or by servants or agents. It does not extend to persons who carry out building work through independent contractors. However, counsel for the first defendant admitted that his client was carrying out building work. Furthermore, I find as a fact that M.A.G. in its execution of the bricklaying sub-contracting was both carrying out building work and working and using scaffolding within the meaning of regulation 6(1). I therefore find that both defendants were bound to observe the provisions of regulation 86(1), that they were each in breach of that duty and that that breach of duty resulted in injury to the plaintiff. No delegation of the duty to comply with either regulation, if that were possible at law, is made out on the facts.

Negligence

35. I turn now to the claim in negligence. Breach of statutory duty is itself evidence of negligence, but it is not conclusive evidence. The question in relation to the claim of negligence is whether the conduct of either defendant amounted to an unreasonable failure to take care for the safety of the plaintiff. I have already indicated that I am not satisfied that there were complaints made before the plaintiff's injury to Mr. Bisa about the lack of ladders on the scaffolding. I do not think that the failure to maintain at all times a continuous walkway around the building at one level amounted to a lack of reasonable care. The building operation itself required the alteration from time to time of the level of some of the planks. I think that the particular danger constituted by the scaffolding which gave rise to the plaintiff's injury was the nature of the timber plank from which the plaintiff slipped and fell. There is no evidence that this was placed in position by any servant of G. & G. for whom that company is vicariously liable at common law. The probabilities are, I think, that it was placed there by a sub-contractor of G.& G. Although G. & G. is liable for breach of statutory because of the actions of its sub-contractor those actions do not make for vicarious liability at common law. As far as M.A.G. is concerned, there is no evidence that the plank was put in position by anybody for whom that defendant is vicariously responsible at common law. The evidence leads to a conclusion that neither the plaintiff nor his co-director colleagues were aware of the presence of the plank until they had descended the fixed part of the scaffolding. Although the plank presented a risk of injury, I do not think that the risk was so great that its very presence indicates lack of reasonable care on the part of either defendant. Expert evidence from a consulting engineer, Mr. L.W. Gilmour, did not establish that it was a normal practice to install steps or ladders in scaffolding unless there was no other safe means of access. Mr. Gilmour agreed in cross-examination that if the internal stairs were available as a safe means of access then it would not have been normal practice to also equip the scaffolding with steps or stairs. I do not think that the plaintiff has established on the probabilities that either defendant was guilty of a failure to take reasonable care for the safety of the plaintiff.

Contributory Negligence

36. In the Australian Capital Territory a defendant liable for breach of statutory duty may still claim apportionment of damages by reason of the plaintiff's failure to take reasonable care for his own safety. The principles of apportionment appear to be no different from those applicable where the defendant is guilty of negligence: see Kakouris v. Gibbs Burge & Co. Ltd. (1970) 44 ALJR 384.

37. On the issue of contributory negligence the defendant is required to prove more than that the plaintiff was simply inadvertent, and the whole of the circumstances have to be taken into consideration, bearing in mind that an employee is subject to pressure of work and his concern for the job in hand will sometimes stand in the way of the worker making a full assessment of all the factors relevant to his own safety. In the present case, however, it has to be remembered that the plaintiff was not only an employee of the second defendant but a shareholder and director. He and his two colleagues were of equal status within the company structure. The decision to climb down the scaffolding appears to have been a joint one. It was a decision to take what was in any event a dangerous course. Towards the bottom of the scaffolding the plaintiff followed Mr. Forner, who had successfully negotiated the timber plank. The decision of the plaintiff to walk down the plank appears to have been an independent one, to some extent suggested by the prior action of Mr.Forner. The plank did not move when either the plaintiff or Mr. Forner were on it. The immediate cause of the plaintiff's fall was over-balancing and slipping because his left foot was too close to the edge of the plank. Even bearing in mind that it was necessary to make a twisting movement of the body to transfer the weight from the tubular scaffolding to the plank, the inference has to be drawn, in my opinion, that the plaintiff failed to put his left foot fairly and squarely on the plank so that it was unlikely to slip over the edge. In doing that and bearing in mind that he had previously made the decision to adopt the dangerous course of climbing down the scaffolding without precise consideration of using the internal staircase, I think that a case of contributory negligence has been made out against the plaintiff. I bear in mind the plaintiff's position as a director of M.A.G. to which I have already made reference. The plaintiff bore what might be regarded as a more than usual measure of responsibility of the events that led to his injury: see Nicol v. Allyacht Spars Pty. Ltd. (1987) 61 ALJR 640. As against the defendant of which he was the director the extent of his own contribution may appear to be greater than against the defendant over whom he had no control. However, the better view appears to be that where there are joint and several defendants the apportionment of damages necessitated by the plaintiff's contributory negligence must be assessed against the defendants as a whole: see Barisic v. Devenport & Ors. (1978) 2 NSWLR 111 and cf. Nathan v. Vos (1970) SASR 455.

38. In all the circumstances, I think it just and equitable having regard to the plaintiff's share in the responsibility for the damages that the plaintiff's damages should be reduced by twenty percent for contributory negligence.

Damages: Generally

39. I deal now with the question of damages. The plaintiff was born on 5 August 1946 in Italy. He had five years at school and then he worked on his father's farm until he commenced a bricklaying apprenticeship. Not long after he finished his apprenticeship and before he turned eighteen, he came to Australia, arriving here in May 1964. He worked as a labourer for six months or so, and worked for another couple of years gaining experience as a bricklayer. He then joined two other Italian bricklayers in an informal sort of partnership and worked as a team in contract bricklaying. He went through two or three such arrangements until he, Mr. Spudic and Mr. Forner formed a partnership in about 1979. The plaintiff's brother-in-law, Mr. Ravanello, was an accountant in the Canberra office of an international firm of accountants and in 1982 he devised a somewhat elaborate scheme for the partnership for the purpose of minimising tax. I shall return to this aspect in a minute.

40. The plaintiff and his colleagues had obtained regular bricklaying contracts over the years prior to the plaintiff's injury, mostly in a fairly small way. The job on the site at Yarralumla appears to have been the biggest project upon which they had hitherto been engaged. In addition to bricklaying contracts, however, they were also beginning to branch out into general building and investment but had not developed very far in this direction at the time of the plaintiff's injury. The plaintiff himself had obtained a C class building licence in March 1981 and was seeking to obtain a further licence at the time of his injury. Because of his limited education and to some degree because English is not his first language, he was having some difficulty obtaining the qualifications necessary for the licence.

41. The plaintiff sustained a fracture dislocation of the left elbow which drew immediate attention at the time of his injury and which was obviously very painful. That injury and associated injury to which I will make reference posed no great threat to the plaintiff's health, but for a bricklayer it is obvious that the potential disruption of the plaintiff's working life was a very real threat. The factual issues associated with the assessment of damages are not easy to determine because in many respects the plaintiff's evidence was difficult to evaluate. He was at times unco-operative and resentful in cross-examination. However, the attitude he displayed in the witness box may be part of the problem associated with the aftermath of his injuries. I paid particular attention to the evidence given by his wife, and I have no reason to reject it. She stated that the plaintiff was an easy-going sort of person before his injury and has become somewhat withdrawn and depressed in the meantime. He has also been the subject of attention by a very large number of doctors and has had operative treatment on three occasions. I accept the evidence of Mrs. Andriolo that the plaintiff told her in hospital shortly after the accident that he thought he had broken his shoulder. She was not so clear, however, about complaints relating to the neck.

42. The plaintiff's fracture dislocation was reduced by Dr Kitchin in the Woden Valley Hospital on the day of injury. After discharge he came under the care of his local practitioner, Dr Voon, on 13 September 1982. Dr Kitchin performed an operation for excision of the head of the radius on 16 December 1982 and found on operation that there had been gross disturbance of the joint with bony growth around the joint following injury. At the suggestion of Dr Kitchin, the plaintiff attempted to resume his occupation as a bricklayer on about 18 March 1983. However, by April 1983 he was complaining to the doctors of pain in the cervical area and in the shoulder and he was referred to Dr Coyle Dr Newcombe Dr White, Dr Stubbs and Dr Long, as well as a number of doctors in Sydney, notably Dr Bernard Bloch. The plaintiff was subjected to an extraordinary amount of medical investigation. Dr Bloch arranged a joint consultation in Sydney Hospital with a number of doctors prior to operating on the shoulder in July 1984. Dr Bloch removed about 1.5 cms. of the outer end of the left clavicle, including part of the acromio-clavicular joint, hopeful that that would restore full use of the shoulder, leaving the plaintiff with restriction of movement of the left elbow as his main problem. Since then the plaintiff has not attempted bricklaying. The plaintiff came under the care of Dr Newcombe in April 1987 and in the following month Dr Newcombe performed a fusion of the cervical spine at both levels, which does not appear to have been of any particular assistance as far as the plaintiff's disability and symptoms are concerned. Dr Dan, an orthopaedic surgeon, suggested that the loss of feeling and lack of power in the thumb and forefinger were associated with the disc protrusion which Dr Newcombe tried to correct. There seems to be no other satisfactory explanation and there seems to be no satisfactory explanation for the disc protrusion apart from the injury.

43. I have summarised the medical evidence very briefly because there is very little dispute about it. It seems that the obvious injury to the elbow over-shadowed the effect of the injury elsewhere, notably in the left shoulder and also in the cervical area. Despite the extraordinary efforts on the part of many eminent medical practitioners to assist the plaintiff to overcome these problems, mainly by surgical intervention and suggestions as to further surgery, manipulation and the like, these efforts have met with only limited success. The plaintiff's elbow no longer gives him any pain, but it is restricted in movement to a range of from twenty-five degrees to ninety degrees, and the overall reduction of use of the left arm is down to about one-third of what it was before the injury. The plaintiff is, in my view, clearly unfit to carry on work as a bricklayer except in the most token way. Since the operation by Dr Bloch in July 1984 he has reasonably and sensibly abandoned any effort to resume bricklaying and his work days are restricted to administrative and supervisory type work. There is very little of this because in addition to the three directors the company employs only one other bricklayer, a Mr. Pulciani, and a labourer. The plaintiff's wife, Mrs. Andriolo, is employed also on a very limited basis in clerical type work.

44. There is a very large amount of documentary material before me relating to the claim for loss of earning capacity and that is the main item of dispute in relation to damages.

45. The defendant argued that on the evidence the plaintiff has suffered no loss in earning capacity to date and is unlikely to suffer in the future. Alternatively, if there is any future loss of earning capacity, it is about $80 per week. For the plaintiff, on the other hand, it is submitted that the past loss of earning capacity should be assessed at a sum calculated at $82,695.13 and for the future the loss should be calculated on the basis of $847.47 per week with a discount for vicissitudes of twenty-five percent. If this method is adopted and the loss is taken only to age 55, then on the 3% tables the present value of the future loss is about $360,000.00. Bearing in mind that the plaintiff has received from the company by way of wages or salary and by way of payments to a family settlement, sums which are the equal of those paid to Mr. Forner and Mr. Spudic, the suggested method of calculation appears to result in a manifestly excessive sum, and it is necessary to look at alternative methods of calculation.

46. Before deciding what is the most appropriate, or the least inappropriate way of calculating the plaintiff's loss of earning capacity, it is necessary to say something about the structure of the business from which he derives his income. Until 1982 the plaintiff operated in partnership. In the tax years 1980 and 1981 he was in partnership with his wife, and the income of the partnership was distributed equally between them. I do not know the extent to which the wife rendered services to the bricklaying business. At any rate, in 1981-1982 Mrs. Andriolo's brother, Mr. Ravanello,established the elaborate scheme which was intended to minimise the tax liability of the parties and their families. At the apex of this structure was the defendant company M.A.G. Constructions Pty. Limited. The company was described in evidence as a "bare trustee" for an entity known as the Forandic Unit Trust. The company filed tax returns each year, each of which showed a profit or a loss of a few dollars. The tax returns were accompanied by statements that the company carried on "no business activity". This statement is somewhat dubious in view of the finding I have already made that the company was carrying out building work on the day of the plaintiff's injury and I note from some of the documents that the company disclosed amongst its liabilities a loan from AGC which by 1987 had grown to a sum of $406,148.

47. The Forandic Unit Trust may be regarded as the active body within the structure. It was established by deed on 21 October 1981 and consisted of a number of units, one-third of which were owned by each of the family settlements set up on behalf of the Andriolo family, the Spudic family and the Forner family. Mr. Andriolo, his wife and two children were the beneficiaries of the Andriolo family settlement. In a report from Messrs Coopers & Lybrand on 15 December 1983 it is stated that "the family trusts are merely vehicles for income splitting and the income earned by the Unit Trust, as you might appreciate due to the nature of the work, is essentially derived by the three men mentioned above together with other employees and sub- contractors employed by the Unit Trust from time to time". Each of the directors of the defendant company drew wages or salary equally with the others. Each of the family settlement trusts shared equally in the profits made by the Forandic Unit Trust. When the profits were distributed to the family settlements, there was a further distribution to the members of each family brought about by the discretionary decision of directors of yet another intervening trustee company, those directors also being members of Messrs Coopers & Lybrand. It appears that they allocated the monies received by the family settlement to each of the members of the family in such a way as to maximise tax saving.

48. At the time of his injury on 19 August 1982 the plaintiff was with his co- directors receiving a net wage of $250 per week. He and they continued to receive that weekly wage until 22 July 1983. Then, according to Messrs Coopers & Lybrand, from 22 July 1983 to the date of their letter 15 December 1983 the plaintiff's wage was reduced to a net wage of $140 per week, the plaintiff drawing in addition $110 per week as an advance on distribution to the family settlement. The reasons for the reduction in wage was stated to be the minimization of worker's compensation costs and the introduction of the prescribed payments system. However, it is clear from an examination of the tax returns that the plaintiff's wage was not reduced below that of his co-directors. At all times he has received the same wages, and his family settlement has received the same distribution, as that of his co-directors. This has been the practice despite the fact that the plaintiff was off work completely between 19 August 1982 and 18 March 1983 and despite the fact that he carried out some but very little bricklaying between then and July 1984 and has done no bricklaying at all since July 1984.

49. Since the establishment of the Forandic Unit Trust, the tax returns submitted on behalf of the Trust showed the work participation of each of the directors as follows:

1983 - all directors full-time;

1984 - all directors full-time;

1985 - Andriolo 22.5 hours per week, Spudic and Forner full-time;

1986 - Andriolo 20 hours per week, Spudic and Forner full-time, Rosa
Andriolo 150 hours, $619 p.a.

1987 - Andriolo 15 hours per week, Spudic and Forner 45 hours per week,
Rosa Andriolo 50 hours, $880 p.a.

50. The income shown on the plaintiff's tax returns from 1980 to 1987 is derived essentially from his wages (paid by the Forandic Unit Trust) and the discretionary distribution he has received from the Andriolo Family Settlement. The after tax figures are as follows:

1980 $ 8,371

1981 $ 8,081

1982 $12,948

1983 $12,922

1984 $10,253

1985 $15,417

1986 $16,390

1987 $14,827

51. The distribution of the Forandic Unit Trust income to the Andriolo family settlement, and the plaintiff's participation in that distribution before tax is shown on the tax returns as follows:

Year Family Plaintiff's Share

1982 $14,435 $ 4,000

1983 $14,528 $ 507

1984 $18,327 $ 4,204

1985 $29,002 $11,500

1986 $28,632 $12,832

1987 $17,808 $ 8,008

52. The tax returns of the Forandic Unit Trust show the gross income (turnover) and the pre-tax "net income for distribution" (after business expenses) as follows:

Year Gross Income (Turnover)

1982 (part) $121,543

1983 $208,000

1984 $311,227

1985 $531,065

1986 $790,143

1987 $786,110

Year Net Income (After Expenses)

1982 $ 43,304

1983 $ 43,585

1984 $ 55,461

1985 $ 87,456

1986 $ 86,481

1987 $ 54,453

53. How do these figures translate into an evaluation in dollars and cents of the plaintiff's undoubted loss of physical earning capacity? Damages are compensatory. Unless the physical incapacity has resulted in some loss of earnings there can be no monetary award for loss of earning capacity as it relates to the past. A calculation of the past loss involves on the face of it a simple exercise in assessing what the plaintiff was likely to earn but for the injury and weighing that against what he has in fact earned in the same period. But even that superficially simple exercise is not always appropriate, particularly in a case such as the present where the plaintiff has, as the above figures show, continued to participate in the earnings of the company and the distribution to the family settlement to the same extent as his colleagues, although he contributes only a fraction of what they contribute to the profitability of the enterprise.

54. As far as the future is concerned, the exercise is both more and less difficult. It is more difficult because both factors, the earnings which might have been earned but for injury and the earnings that are likely in fact to be earned, are hypothetical. It is easier in the sense that,even though the physical injury has not been productive of actual loss to date and may not appear to be productive of loss in the near future, the plaintiff may nevertheless be awarded a lump sum as a hedge or buffer against the contingency that the physical incapacity may become productive of actual economic loss at some time in the future. An assessment of such a lump sum is relatively free of any pretence at mathematical accuracy.

55. As far as the past loss is concerned, one may immediately dispose of the approach taken by Messrs Steel Jagger & Associates, Accountants, who furnished a report on behalf of the first defendant. It was suggested in that report and indeed by Mr. Jagger, who gave evidence, that a possible line of approach would be simply to look at the raw figures of the plaintiff's after tax income as shown above. These figures indicate that apart from 1984 the plaintiff's income since the year of injury has always been higher than it was in the years before injury and that it was only in 1984 that the injury may be regarded as productive of loss. This approach ignores the necessary factor of trying to ascertain what the plaintiff might have earned if he had not been injured, and I reject it. That is not to say, however, that the report and evidence of Mr. Jagger is not of assistance in other respects.

56. On behalf of the plaintiff, it was urged that I should adopt the approach of Mr. Ravanello. That approach was based on certain factual assumptions made by Mr. Ravanello. Mr. Ravanello assumed that the plaintiff had lost a certain number of days from work since the injury. The number of days was contained in some records which the plaintiff had kept over the years. These were in evidence. I was not invited to examine them by either side and I will assume that they are not in dispute. Mr. Ravanello also assumed that had the plaintiff not been injured he would have been capabale of laying six hundred bricks a day at certain rates. Again these matters were not the subject of comment by counsel on behalf of the defendants, and I will assume that they are not in dispute. Acting on those assumptions and taking certain other matters into consideration such as the incidence of public holidays and rainy days, Mr. Ravanello came to the conclusion that from the date of injury to 20 October 1987 the plaintiff had sustained a gross loss of earnings of $136,403. On the approach taken by Mr. Ravanello that sum would also represent the loss to the Forandic Unit Trust. The gross figure was stated by counsel to result in an after tax figure to the plaintiff of $82,695.13 for the period. The pre-tax figure represents an average of about $27,000 per year. This is a very high proportion of the figures set out above relating to the amounts distributed each year by the Forandic Unit Trust to each of the family settlements. For instance, it is about one-third of the amount distributed in 1986 and about one-half of the amount distributed in 1987. In other words, if Mr. Ravanello's figures are accepted at face value, the income available for distribution to the family settlements after deduction of business expenses would have been increased by about fifty percent in 1987 if the plaintiff had been able to work the hours at the rates assumed by Mr. Ravanello. It may be that this is a slightly distorted picture in that there would be increased overheads to be set against the increased earnings brought in by the plaintiff, overheads such as worker's compensation and the like, but I do not see that they would be substantial. In any event, the illustration is sufficient for me to regard Mr. Ravanello's approach as not reflective of the true situation regarding the value of the plaintiff's past loss of earning capacity.

57. Another method of approach, one that was suggested on behalf of the defendants as a fall back position, is that the measure of loss should be taken to be the cost of a substitute bricklayer. Mr. Jagger calculated the additional cost to the Forandic Unit Trust of employing a substitute bricklayer at the rates paid to Mr. Pulciani, who has been in employment with the company for many years. The additional cost to the company or to the Forandic Unit Trust would, upon this approach and according to the figures supplied by Mr. Jagger (before allowing for tax savings), result in a figure of $46,860 for the period to 2 December 1987. It was submitted on behalf of the plaintiff that this approach was unacceptable because there was no evidence that a substitute bricklayer was available in Canberra at any relevant time. In my view, such evidence is unnecessary but an additional factor favourable to the plaintiff might be assumed, namely that a substitute bricklayer would not be available at all times and in this respect I would think it appropriate (for the purpose of testing the accuracy of the method) to round out the additional cost of a substitute bricklayer to $50,000. That is an average of $10,000 per year which in the light of the rest of the figures appears to me to be realistic and reasonable and far more so than the $136,000 calculated by Mr. Ravanello.

58. The next question is whether the plaintiff is entitled to recover the whole of the additional cost, or whether it is to be apportioned amongst the three members of the Unit Trust. This is a difficult question and no clear principle of law emerges from the cases. Some of the cases are discussed by Luntz, Assessment of Damages 2nd ed 1983 p 256-260. Perhaps the strongest authority for the purpose of this Court is Dal Zotto v. Bonnani [1980] FCA 97; (1980) 47 FLR 239, a decision of the Full Court of the Federal Court of Australia sitting on an appeal from the Supreme Court of the Northern Territory, in which the majority held that a plaintiff who is a member of a partnership can claim no more than his share of the loss where substitute labour is hired. Counsel for the plaintiff submits, however, that the dissenting view of Toohey J. is to be preferred as it is in accord with other authority, mainly from South Australia. Counsel for the plaintiff also relied upon Griffiths v. Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161 for authority for the submission that the value of the plaintiff's lost capacity may be greater than his share of the cost of substitute labour. Luntz extends the reasoning in that case, which allows a plaintiff to recover damages for the voluntary provisions of services, to support the proposition that a plaintiff should be able to recover damages unrestricted by the generosity of his partners in refusing to allow him to burden the loss to the partnership income occasioned by the plaintiff's injury. This is, in my view, a not unattractive argument, but I do not think that there is any hard and fast principle of law and the appropriate method of approach in each case has to be tailored to meet the circumstances. Indeed, I do not think that Toohey J. in Dal Zotto v. Bonnani sought to apply a principle of law different from the majority of the Court. Luntz takes the view that although it would be preferable if in all cases the total lost could be recoverable without a multiplicity of actions, there may be a difference between an ordinary commercial partnership and a partnership between a husbandand wife. In the latter case "the law ought to recognize that the family is an economic unit and if the component that brings in the money is injured in circumstances where the law seeks to make good the loss, it is the loss to the whole unit that should be compensated". In the case of an ordinary commercial partnership Luntz recognizes that there is a possibility of a direct right of action by the non-injured partners. It was argued on behalf of the plaintiff that if the plaintiff recovers only his share of the loss then the defendants are being allowed to escape the consequences of their wrongdoing. Luntz provides at least a partial answer to that objection. On the other hand, there is the argument that the plaintiff, having received an equal share in the profits of the business despite his reduced contribution, would be receiving too much of a windfall if he also recovered from the defendant the whole of the loss to the partnership. On balance I think that it is the latter argument that should prevail. I think it appropriate in the circumstances of the present case to allow the plaintiff one-third of the cost of the substitute labour which, according to Mr. Jagger's analysis and after allowing for tax savings, results in a figure of $15,620 up to 2 December 1987. Because there may have been occasions when a substitute bricklayer would not have been available, I increase that out to a round $17,000.

59. I now turn to the question of future economic loss, which I take to commence on 3 December 1987. This involves a calculation of what the plaintiff is now earning and likely to earn compared with what he would have been earning and would have been likely to earn if he had not been injured. In order to ascertain the plaintiff's present earning capacity I assume that he will at least for some time in the future continue to be a member of the defendant company and of the Forandic Unit Trust. His after tax income as shown in his tax returns for 1986 and 1987 were respectively $16,390 and $14,827. It was suggested both on behalf of the plaintiff and indeed by Mr. Jagger that it would be appropriate having regard to the purpose of the tax minimization scheme and the hardly more than nominal part played by Mrs. Andriolo in the bricklaying business to "lift the corporate veil", although that may not be quite the appropriate term. Mr. Ravanello insisted as well he might that the tax minimization scheme was not a mere facade but represented the real situation. I think his assessment in this regard was really governed by the fact that the Commissioner of Taxation had accepted the validity of the scheme for tax purposes. Certainly the discretionary payments authorised by the partners of Messrs Coopers & Lybrand have little or no relevance to the plaintiff's earning capacity. I think that the whole of the amount distributed by the Forandic Unit Trust to the Andriolo family settlement should be regarded as representing part of the plaintiff's earning capacity. The other part of his earning capacity is represented by what he receives as wages or salary. Mr. Jagger prepared a list of figures showing what he called the "re- structuring of income by eliminating trusts". These figures also eliminated income earned by the Forandic Unit Trust by way of interest and also made allowance for amounts shown as paid direct by the Trust to Mrs. Andriolo for her services. The after tax figures for the years are set out as follows and I accept them as showing the plaintiff's real income during those years.

1980 $11,190

1981 $14,455

1982 $21,050

1983 $20.696

1984 $18,891

1985 $24,436

1986 $24,345

1987 $20,354

60. It is notable that despite the plaintiff's physical disability there was a substantial increase in income in the two years following 1984. The state of the labour market in the building industry in Canberra, as the evidence confirmed, fluctuates from time to time and I think the plaintiff's present earning capacity is reflected in averaging the last two years, giving a pre-tax figure of about $33,000 and a post-tax figure of $22,350. That is his present earning capacity, assuming the Forandic Unit Trust survives.

61. It was submitted on behalf of the plaintiff that I should take the plaintiff's likely weekly earnings but for injury being no less than $1,500 before taxation, based on an average of six hundred bricks laid per day at an average rate of $420 per thousand for a five and a half day week. On that approach the plaintiff would be capable of earning well over $60,000 per year before tax after allowing for holidays and the like. When compared with the actual wages received by the directors together with the income for distribution of the Forandic Unit Trust for the whole of the year 1987 as a result of the work done by the two bricklayer directors, the plaintiff, the employed bricklayer and a labourer, it is, in my view, patently too high.

62. I think that the least objectionable way of looking at the plaintiff's likely earnings but for injury is as follows. The plaintiff said in his evidence that by mid-1983 he had reached fifty percent of his pre-injury capacity. Allowing for the fact that he probably suffered a further decline in capacity since then, the most recent tax returns nevertheless indicate that in 1986 the plaintiff was claiming that he worked twenty hours per week whilst his partners worked "full-time". In 1987 the plaintiff was claiming fifteen hours per week and his partners forty- five hours per week. I take the 1986 figures first. The total "re-structured" income of the three partners was $73,035 ($24,345 x 3) for a total of one hundred hours worked by the three men throughout the year. For a "normal" working week, assuming the plaintiff to be uninjured and three men working a total of one hundred and twenty hours, the "re-structured income" to the partnership would have been $87,692. The plaintiff's share of this would have been $29,214, indicating a loss of $4,869 against $24,345 for the year, or about $93 per week. Turning to the 1987 figures and using the same method, the total re-structured income to the partnership was $61,062 ($20,354 x 3) for a total of one hundred and five hours worked by the three men through the year. If they had worked one hundred and twenty hours per week through the year, the total income would have been $69,785. Of this the plaintiff's share would have been $23,261 indicating a loss of $2,907 for the year against $20,354 or $56 per week. By comparison, the current weekly gross rate paid to Mr. Pulccini is $395. 58, which with a tax saving factor calculated by Mr. Jagger results in an ongoing weekly cost to the Forandic Unit Trust of $242 per week. Of this the plaintiff's share would be just over $80 per week. After all that, it seems to me that probably the most appropriate way to calculate the ongoing future loss is at that rate of $80 per week.

63. This, of course, assumes that the Forandic Unit Trust and associated family settlement arrangements will continue. This is by no means assured. Both Mr. Spudic and Mr. Forner expressed reservations about whether they wished the arrangement to continue. The reasons are obvious and the attitude is reasonable. Possibly one of the disincentives for abandoning the system is its sheer complexity and the cost and effort of replacing it with something else. Nevertheless, I think it unlikely that the plaintiff will continue to reap the benefits of the existing structure for much longer and I would think that within a couple of years it is likely that his partners to date will have found an alternative method of organizing their affairs which will at least appear to be more financially attractive to them. In the circumstances, the plaintiff will be in a very difficult position. However, it is quite impossible to try to calculate a periodic loss at that stage. I think that the best way to resolve the matter is to allow the loss of $80 per week to the age of 55, when I would have expected that the plaintiff would have in any event had to cease bricklaying, but to allow a further substantial sum by way of a hedge or buffer, to compensate the plaintiff for the likelihood that at some stage after two years hence he will find himself in a position where he will for some indeterminate time and from time to time be unable by reason of his disability to find suitable employment for the rest of his working life to age between 60 and 65 years. I think that such an approach is consistent with that taken by Blackburn C.J. in Stepke v. NCDC & Others (1978) 21 ACTR 23 and by the Full Court of the Supreme Court of Western Australia in Tibbett v. Davidson (1973) 1976 WAR 24. The plaintiff is, however, not to be regarded as totally disabled even when the present arrangements with his partners come to an end. He is right-handed and can use tools requiring the use of one hand. He can drive a car. He can keep simple books of accounts and business records. He can negotiate simple building contracts and supervise their execution. His wife can assist him in the administration of a small business as she has done in the past. I will award $160,000 for future economic loss. This includes a discount for vicissitudes.

64. In relation to pain and suffering and loss of enjoyment of life, the plaintiff has the restriction of movement of the left elbow to which I have already referred, the loss of feeling in the left hand and pain in the left shoulder and neck, which is not absolutely continuous, but which troubles him when he tries to use his left arm. He is unable to touch his face with his left hand and this prevents him from carrying out such activities as washing his face. He is, however, right-handed and is able to use tools which require the use of one hand only. He continues to take medication, about twelve pain-killing tablets per week and continues to take anti-depressant tablets, averaging about one a day. I do not expect that he will come to any further surgical treatment. He has already been subjected to pysiotherapy, hypnotherapy, laser treatment and needle acupuncture, none of which has proved of lasting benefit. I do not think that any of the other suggested methods such as the TENS apparatus would be of any assistance. The psychologist, Patricia Williams, states in her report that the plaintiff has not been able to come to terms with his disability and pain and he continues to look for a cure. Such a cure is, in my opinion, unlikely to be found. Because of the uncertainty of his economic future I do not think it likely that his depression will resolve in the near future. However, he has shown a certain amount of resourcefulness despite his comparative lack of education. His attempts to gain further qualifications at the TAFE were interrupted because of his disabilities and it is no more than a matter of conjecture as to whether he will go on to obtain those further qualifications at a later stage. It is possible that further physiotherapy may be prescribed. It is impossible to be precise about the cost of future physiotherapy, medication and medical expenses and a component in respect of these matters will be included in the award for pain and suffering and loss of enjoyment of life.

65. The plaintiff does not appear to have followed any particular form of recreational or leisure activity prior to his injury, but obviously his daily activities are restricted. For instance, he does only a little of the gardening. According to his wife, his ability to keep the record books of the business is improving to the extent that she needs to help him only occasionally. Nevertheless, he is left with a left arm which is permanently restricted in movement, a painful neck and left shoulder which, in my view, will be painful indefinitely, but whether permanently or otherwise it is impossible to say. He is still a young man. I think the award for general damages should be $60,000 as to which I would apportion one half as to the past.

66. Out-of-pocket expenses to date are agreed at $17,775.10.

67. In summary the award of damages is as follows:

Past economic loss $ 17,000.00

Future economic loss $160,000.00

Out-of-pocket expenses $ 17,775.10

Pain and suffering and loss of
enjoyment of life $ 60,000.00

Total $254,775.10

68. It appears likely that the plaintiff received worker's compensation. I have, however, not been told of any Fox v. Wood component. Although interest is claimed it cannot be assessed on the award for past loss of earning capacity until I know the amount of worker's compensation payments made. The interest on past pain and suffering is calculated at fourteen percent and reduced by half giving a figure of $12,425 which will be added to the damages. The total figure will be reduced by twenty percent for the plaintiff's contributory negligence.

69. I propose to deal only briefly with the question of contribution between the defendants. Under s.12 of the Law Reform (Miscellaneous Provisions) Ordinance 1955 the amount of the contribution recoverable by one defendant tortfeasor liable to the plaintiff from another tortfeasor liable to the plaintiff in respect of the same damage is such as is found by the Court to be just and equitable, having regard to the extent of the responsibility for the damage on the part of the tortfeasor from whom contribution is claimed. In Barisic v. Devenport, it was decided that it is only after the share to be borne by the plaintiff, if any, for his contributory negligence on the one hand, and by the defendants on the other has been established, that it becomes appropriate to apportion the defendants' share between them. Both defendants I have found to be liable to the plaintiff for the same breaches of the Scaffolding and Lifts Regulations. I am not convinced that one defendant has a greater share of the blame than the other. On the one hand, because of the contractual relationship between the defendants it was G. & G. which had the primary responsibility to provide suitable and safe scaffolding. On the other hand, because it was M.A.G. who employed the plaintiff, the duty to provide safe means of access lay primarily, in my opinion, upon that defendant. I do not think it is necessary or desirable to embark upon any greater degree of sophistication in seeking to assess the culpability of each of the defendants for the purpose of contribution. Each of them is entitled to contribution from the other of one half of the amount for which the plaintiff is to have judgment. The plaintiff is to have liberty to apply in respect of the final amount for which judgment is to be entered. Each defendant has liberty to apply in respect of the form of the order as to contribution. I shall hear the parties if they wish to be heard on the question of costs, otherwise I shall simply order the defendants to pay the plaintiff's costs.