George Georgalis v Jim Andronaras; Ivan Stibohar and P J Keenan [1992] ACTSC 72 (14 August 1992)

SUPREME COURT OF THE ACT

GEORGE GEORGALIS v. JIM ANDRONARAS; IVAN STIBOHAR and P J KEENAN
S.C. No. 117 of 1992
Negligence - Damages

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Master A Hogan(1)

CATCHWORDS

Negligence - Occupiers liability - Warehouse under construction - Builder - Subcontract carpenter - Shower recess under construction - Metal tray - Not fixed - Knowledge of builder - Plaintiff slips - Leg laceration - No issue of principle.

Damages - Assessment - Personal injury - Occupiers liability - Laceration to leg - No issue of principle.

HEARING

CANBERRA
14:8:1992

Counsel for the Plaintiff: R. Livingstone

Instructing Solicitors: Snedden Hall and

Gallop

Counsel for the Defendant: F.G. Parker

Instructing Solicitors: Sly and Weigall

Counsel for the Third Parties: R.L. Crowe

Instructing Solicitors: Malleson Stephen
Jacques

ORDER

The Court orders that:
1. Judgment be entered for the Defendant.

2. The plaintiff pay the defendant's costs.

DECISION

This is an action for damages for personal injury received by the plaintiff on 11 March 1989. He was a subcontract carpenter, who had been engaged by the defendant to erect and fit out the framework of a number of showers in a warehouse that the defendant, a builder, was constructing. The defendant has issued a third party notice claiming contribution or indemnity from the plumbing contractor who had undertaken to perform the plumbing work in the installation of the showers.

2. Counsel for the defendant and the third party have informed the Court that the defendant and the third party have settled by agreement the third party proceedings, so that the issues for me to determine are those relating to the defendant's liability to the plaintiff and the quantum of damages.

3. The plaintiff had, before the day of the accident, constructed the timber framework of two shower areas. He was then informed that the plumber had done the plumbing work that was necessary before he could proceed and that the structure was ready for him to fix the villaboard cladding.

4. On the day of the accident the plaintiff came to the site. In each of the shower recesses there was, on the concrete floor, a galvanised metal tray, with upraised edges, designed to form an impervious base to the shower recess.

5. He carried out the work of fixing the villaboard in one of the recesses. He then went to move into the second recess. There was, in the tray, and on the floor in the vicinity, a quantity of sand, dirt and brick fragments. There was a space of an inch or less between the edges of the tray and the timber framework on the three sides of the recess. The outlet drain had not been installed, and the metal tray was not fixed either to the floor or to the framework.

6. As the plaintiff stepped onto the tray, while one foot was outside it and the other came into contact with it, the tray moved a short distance. The plaintiff fell. His lower right leg came in contact with the raised edge of the tray. The outer aspect of his leg was severely lacerated.

7. He did his best to staunch the bleeding with his singlet, and tried to make his way to his car. The accident happened late on a Saturday afternoon, and it appears there was no one else working on the site to help him. He encountered some persons driving in the vicinity, who drove him to Calvary Hospital.

8. When X-rays had been taken it was decided that Calvary Hospital did not then have the facilities needed to treat the wound, and that evening he was transferred to Royal Canberra Hospital, where he came under the care of Dr Gillespie, orthopaedic surgeon.

9. Dr Gillespie observed considerable blood clotting and a still bleeding vessel in the large laceration, and found weakness of the muscles of the anterior compartment and numbness of the lower leg and dorsum of the right foot. He was given antibiotics and anti tetanus injections, and that evening was taken to the theatre where the wound was explored and repaired under general anaesthetic.

10. Dr Gillespie reported that the plaintiff's post operative recovery was rapid and unremarkable. He remained in hospital with the leg in plaster until the following Thursday. The plaster was changed to a lighter, complete, below knee plaster, and he was sent home on crutches.

11. The plaster was removed on 4 April 1989. The wound was well healed. The sutures were also removed. Ankle and toe dorsiflexion were returning. Numbness over the lower leg and foot persisted. The plaintiff continued to use crutches for about three months in all.

12. He was not able to return to work for about a year. When he did find a possible job it was necessary for him to spend a little time arranging insurance before the contractor would let him begin. He recommenced work on about 6 March 1990.

13. Dr Gillespie reviewed his condition on 31 July 1990. The numbness had persisted, there was fleeting pain around the right ankle and foot, and an ongoing feeling of instability around the right ankle. He claimed that his ability to work was severely restricted in cold weather, because of increased pain. Clinically, there was no muscle weakness or wasting, but the sensation to touch was objectively altered. The plaintiff complained to Dr Gillespie that his right leg was weaker than his left, but the doctor was not able to demonstrate any evidence of permanent motor impairment. The complaints of changes of sensation were objectively justified however. There was no real change when Dr Gillespie reviewed him on 19 February 1992. Dr Gillespie could find no evidence to support the plaintiff's claims of weakness in the leg. I accept the doctor's statement about the clinical evidence, but I think that it is understandable that the plaintiff would not be confident that the muscles had recovered as completely as the doctor thought, and that he might be wary of working on heights.

14. He worked from March 1990 to June 1990. He claims he could not work then until September 1990 because of the cold. In September he worked on the construction of his own home at Bonython, organising and supervising other tradesmen, but doing some of the carpentry work himself. When the house was completed he sold it. He has since changed the mode in which he earns his living. Instead of working most of the time as a subcontract carpenter he spends more of his time and abilities in speculative building of cottages.

15. There was some well founded criticism of the reliability of the figures that he proffered to support his claim for economic loss. It is clear that he was prepared, through his accountant, to present one picture of his affairs to the taxation authorities, and a different and more favourable one to his financiers.

16. I am simply not persuaded that he suffered any loss of income earning capacity that resulted in economic loss to him beyond the period of a year. For the future there is a possibility that if circumstances change to make his present method of operation uneconomic he might be at some disadvantage in the market place in comparison with other carpenters, but I think the disadvantage would not be great.

17. For his pain and suffering I would award the sum of $25,000, of which $5,000 relates to the future. For interest on the past component of that item, on the conventional basis, I would award $1,375.

18. The out of pocket expenses were agreed at $2,234. There was no evidence about payment, so that I am not able to award interest on that component.

19. So far as past economic loss is concerned, he was carrying on business in partnership with his wife. It is clear that all the earnings of the partnership were derived from his activities. I regard his taxation returns as a more reliable source of information than his submissions to financiers. In the year to 30 June 1989 the partnership derived a net income of $8,559, but after taking account of drawings the plaintiff derived income of $12,079, on which tax at $1,826 was paid, and his wife $15,779, on which tax of $2,919 was paid. The money dealt with in the accounts as being derived by his wife would to a considerable extent have enured to his benefit.

20. As a matter of judgment rather than calculation, and taking account of earnings of that order, I would award a sum of $20,000 for past economic loss. In the light of the higher earnings he had enjoyed while working on Parliament House, this amount probably errs, if at all, on the side of generosity to the plaintiff. In lieu of interest on that item I would award a lump sum of $5,000. As a buffer for future economic loss I would award $10,000.

21. If the plaintiff is entitled to judgment, therefore, the total award would be made up as follows:

Pain and suffering $25,000
Interest 1,375
Out of pocket expenses 2,234
Past economic loss 20,000
Interest 5,500
Future economic loss 10,000
TOTAL $64,109

As a global award that total sum appears to me to be within the limits of a discretionary estimate.

22. The particular breaches of the duty to take care on which the plaintiff relied were three.

23. The first was that the sharp edge of the tray was left unguarded. It must be remembered that the plaintiff was an experienced carpenter working on a building site. The building was under construction. In every building site there will be objects and activities that are capable of causing injury. Sometimes the fact that they do cause injury is due to the negligence of somebody. But not always. In this case there is no evidence that the unprotected edge of a shower tray is a cause of harm with such frequency that it would be reasonable to put some protection on it at all times until it was enclosed under the cladding or the tiles. But, more to the point, there is simply no evidence that the defendant, the builder, was or ought to have been aware of such danger as there was. It might be inferred that the third party had such knowledge, but there is no evidence of any such relationship between the defendant and the third party as would make the defendant vicariously liable for the third party's acts or defaults. The plaintiff does not succeed on the first particular, in my opinion.

24. The second matter relied on was the presence of loose material under the tray, which made it liable to move when the plaintiff stood on it.

25. There is no direct evidence that there was any loose material under the tray. I was asked to infer its presence from the fact that there was debris in the tray and on the concrete floor nearby. I would not hold that such an inference could not possibly be drawn. I simply find that I am not moved to draw it. In fact the presence of the debris in the tray rather tends the other way, to suggest that the debris, or most of it, came to be at the site of the accident after the tray had been placed in position and not before.

26. Again, there is simply no evidence that the defendant, the building contractor, knew or ought to have known that there was debris under the tray, if indeed there was any. The plaintiff does not succeed on the second particular.

27. The third matter relied on was that the defendant's agent, the supervisor, Mr Tony Bakkas, knew or ought to have known, that the tray was capable of movement. Mr Bakkas had told the plaintiff that the site was ready for him to return to in order to instal the villaboard. But the plaintiff received no warning of the danger.

28. Yet the effect of the plaintiff's own evidence is that he, an experienced carpenter, did not notice anything about the tray to suggest that it was dangerous. Why then should it have been noticeable to Mr Bakkas? There was no evidence that he knew in fact. I am not persuaded by such evidence as there is that he ought to have known. In my judgment the plaintiff has not made out his case on this basis either.

29. In case it were necessary, I would also agree with the submission of counsel for the defendant that this accident was not one which was highly probable. The gap between the side of the tray and the framing was slight. There was no movement of the tray in the other recess. There was no evidence that any similar accident had ever happened anywhere. I would agree that the probability of this occurrence was so low, and the magnitude of such risk so slight, as not to require this defendant to have taken any steps to guard against it, even if there were evidence that he knew or ought to have known about it.

30. There must be judgment for the defendant. The plaintiff must pay the defendant's costs. I will hear counsel about any orders that arise from these findings so far as the third party proceedings are concerned.