Ljuben Nikoloski v Ridge Consolidated Pty Limited [1995] ACTSC 69 (11 July 1995)

SUPREME COURT OF THE ACT

LJUBEN NIKOLOSKI v. RIDGE CONSOLIDATED PTY LIMITED
No. SC420 of 1993
Number of pages - 9
Damages - Worker's Compensation

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
HIGGINS J

CATCHWORDS

Damages - defendant liable in contract and in tort for plaintiff's injuries - continuing injuries of moderate severity prevent plaintiff from resuming pre-accident employment as carpenter - some residual capacity for employment - heads of damages discussed - no question of principle.

Worker's Compensation - plaintiff injured after falling from bridge without safety rail - defendant negligent for failing to provide safety rails and kickboards in conjunction with high work platform - defendant also in breach of statutory duty under regulation 73(3) of the Scaffolding and Lifts Regulations (ACT) - no question of costs.

Scaffolding and Lifts Regulations (ACT), reg 73(3)

Griffiths v Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161
Fox v Wood [1981] HCA 41; (1981) 148 CLR 438

HEARING

CANBERRA, 5-7 and 29 July and 9 September 1994, 2 February and 27 April 1995
11:7:1995

Counsel for the Plaintiff: Mr R E Williams QC with Mr G Parker

Instructing solicitors: Gary Robb and Associates

Counsel for the Defendant: Mr J E Maconachie QC with Mr G P McNally

Instructing solicitors: Sly and Weigall

ORDER

THE COURT ORDERS THAT:

1. There be judgment for the plaintiff in the sum of $307,611.74.
2. The defendant pay the plaintiff's costs of and incidental to this
action save those costs awarded to the defendant pursuant to the
order for costs dated 9 September 1994 including costs of the day
incurred on and for 2 February 1995.

DECISION

HIGGINS J On 9 September 1994, I permitted the plaintiff to re-open his case to address the very significant issue of the presence or absence of a safety rail upon the platform on which he was working when he fell. In the reasons I delivered for so doing, I set out the evidence given up until then. I need not repeat it.

2. That the plaintiff fell from the platform after being struck by a piece of jointex rendered airborne by a gust of wind was not seriously contested. I am satisfied that was the reason he fell. It was clearly not his fault. Although there was an allegation of contributory negligence, the evidence failed to support it.

3. On 28 April 1995, I allowed an amendment to the statement of claim to allege that the blow from a piece of jointex was the cause of the plaintiff's fall. I declined to allow an amendment alleging negligent placement of the jointex. That would have been a new case. Leave to re-open was given only to enable the plaintiff to address the issue of the presence or absence of a safety handrail.

4. In further support of the plaintiff's evidence that there had been no handrail present, the plaintiff called Mr Angelo Stojkoski. Mr Stojkoski had also been employed by the defendant as at 10 November 1992. He had then been so employed for the prior three years. His duties had included collecting tools from various work sites, including that upon which the plaintiff was working when he fell.

5. He knew the plaintiff well over a period of eight to nine years. They were and had at all times been friends.

6. Mr Stojkoski said he arrived at the plaintiff's work site at about 3.45pm on the date of the plaintiff's accident. He saw Mr Lulic and two carpenters. Mr Lulic requested assistance with the plaintiff who had recently suffered the injury of which he complains in these proceedings.

7. Mr Stojkoski saw the plaintiff underneath the bridge. There was blood about his mouth. The plaintiff was taken away by the foreman, ostensibly to the first aid station. Mr Stojkoski noticed a piece of jointex a metre or two away from where he had seen the plaintiff. It was, he said, "half broken".

8. The jointex was about 4 metres from the end of the bridge where Mr Stojkoski had first seen Mr Lulic. There was, however, no handrail on the platform from which the plaintiff had apparently fallen. Two days later he saw the platform again. There was then a handrail in place.

9. Mr Stojkoski was cross-examined. He agreed that there were four bridges being built by the defendant in the Gungahlin area. The bridge from which the plaintiff fell was but one of them. They were at various stages of construction. He agreed he had kept no "notes" of the stages at which handrails were erected to the construction platforms. The handrail he saw two days later he described as being of mixed pipes and wood.

10. He was asked about a statement he had made in January 1995 to Mr Peter Stojeski, a loss assessor engaged by the defendant's insurer. In that statement Mr Stojkoski had said of the handrail:

I think it was a timber handrail but I am not sure because we were
working on a lot of bridges at that time.

11. It is not clear to me, from the questions and answers given in evidence, whether this was intended to be taken as a reference to a handrail in place on 10 November 1992 or to the one which appeared two days later. The document recording the entire statement was not tendered by counsel for the defendant.

12. It was suggested to Mr Stojkoski that:

... what you say you can remember today is really the product of
your desire to help your good friend.

He rejected that suggestion.

13. There is a real question as to what that suggestion really implied. It could have been a request to the witness to acknowledge the possibility of erroneous recollection or that his alleged recollection was fabricated. It was not suggested that Mr Stojkoski was not present as he deposed he was. Nor was it suggested that his observations, otherwise than as to the state of the handrail, were inaccurate.

14. Further, I had ordered, as a condition of the grant of leave to the plaintiff to re-open his case, that the plaintiff serve on the defendant's solicitors a copy of any proof of evidence of Mr Stojkoski or any other witness or evidence upon which he proposed to rely. The defendant did not call Mr Lulic or any other witness or evidence in reply. Nor did the defendant adduce any evidence, whether of construction schedules, work diaries or otherwise, to better fix the time at which the handrails ultimately erected at the bridge from which the plaintiff fell, were put in place.

15. It is possible that Mr Stojkoski was mistaken as to the date on which he noticed the relevant handrail to be absent. The defendant's counsel, in address, expressly refused to suggest that he was fabricating. It is also possible Mr Lulic was mistaken as to the date on which he noticed that handrails were present and confused an earlier occasion, even on the same bridge, when he and the plaintiff erected handrails, perhaps even on the other side of that same bridge.

16. I did not gain the impression that any of the witnesses called were deliberately prevaricating.

17. However, if the plaintiff was almost upright, as both he and Mr Lulic say he was, when struck by the jointex, so that he was thrown off-balance toward the edge of the platform, it is difficult to see how he could topple over the edge unless no handrail was then present. It is the very sort of occurrence a handrail should prevent. At the very least, the plaintiff would have been seen to strike the handrail with his body. That was not observed. I think Mr Lulic was, in fact, reconstructing what, had he been right, must have happened, when he gave an account of the plaintiff rolling under the handrail. If a handrail of the kind required under the regulations and a kickboard had been in place, it seems to me highly unlikely that the plaintiff would have rolled over the edge between the top of the kickboard and the bottom of the rail.

18. It seems to me obvious that the failure of counsel for the plaintiff to cross-examine Mr Lulic, whilst to my mind an error of judgment, did not, in light of all the evidence, amount to a concession as to its accuracy. It had already been controverted by the plaintiff's evidence. It was subsequently disputed by Mr Stojkoski's evidence. No response was made further to challenge the effect of that evidence. In those circumstances, it seems to me that the most likely scenario is that deposed to by the plaintiff and Mr Stojkoski. I think it more likely than not that the safety handrail was not erected until after the plaintiff's fall.

19. It is to my mind negligent for the defendant to have required the plaintiff to work from a relatively high platform in the absence of safety rails and kickboards. It is also a breach of regulation 73(3) of the Scaffolding and Lifts Regulations (ACT).

20. In my opinion, the defendant is, in the result, liable to the plaintiff both in contract and tort. It was in breach both of its common law and statutory duty to the plaintiff.

DAMAGES
21. I turn to the question of damages.

22. The plaintiff is now 44 years of age. He was born in Macedonia on 7 February 1951. After leaving school at age 14, he completed a three year apprenticeship as a carpenter. He thereafter worked only as a carpenter, coming to Australia in 1986. He was then employed on various building projects such as that upon which he was engaged by the defendant.

23. In the fall from the bridge the plaintiff sustained injuries to both wrists. He also injured his right hip and leg. He sustained a blow to the head causing a broken tooth and neck trouble. There was also a laceration to the lower lip. The right wrist, having been fractured, was placed in plaster. The plaintiff also had physiotherapy.

24. He was off work until the beginning of March 1993. He was then employed by his brother, who was the proprietor of a company engaged in concreting, as a formwork carpenter. After six days he went off work due to the effects of his injuries. He recommenced work for his brother's company in September 1993. He found he was capable of performing only light duties. It was the right wrist which gave him the most trouble. Hammering, for example, caused extreme pain. He is naturally right-handed.

25. In about March 1994, the brother's company ran out of suitable work.

26. The plaintiff also had continuing difficulties with his left wrist. It is painful and locks. The neck injury adds to the plaintiff's troubles. His neck is restricted in movement and painful.

27. In general terms, the continuing pain and restriction of movement in the wrists and neck has restricted the duties the plaintiff is able to perform both in his employment and around the home. It has reduced his enjoyment of life generally.

28. The nature and extent of the plaintiff's injuries and resultant disabilities has been well documented through the reports of the various medical practitioners he consulted.

29. He had first consulted Dr Niewiadomski, a general practitioner who spoke Macedonian. No report from Dr Niewiadomski was tendered. He did, however, refer the plaintiff to Dr Michael Gillespie, an orthopaedic surgeon.

30. Dr Gillespie diagnosed "an undisplaced intra-articular fracture of the distal right radius". It was placed in a plaster cast. There was "a small dorsal avulsion fragment" which accounted for "slight dorsal mid-line discomfort" in the left wrist. In December 1992, Dr Gillespie referred the plaintiff for physiotherapy to both wrists. He considered him unfit for work.

31. In his report of 26 February 1993, Dr Gillespie noted some continuing tenderness over the right hip. He refers also to stiffness and soreness of the neck and noted:

Recent X-rays of the neck show some degenerative change at the
C6-7 interspace ...

The right hip has been of no continuing significance. The neck symptoms have continued.

32. On 29 April 1994, Dr Gillespie noted that the neck pain and stiffness continued but was "apparently not too severe". The wrists continued to be a source of complaint. They seemed much the same as before. There was no sign of progressive deterioration. Movement was relatively normal. Movement and pain, of course, are not necessarily co-extensive.

33. Dr David Roebuck, another orthopaedic surgeon, reported that on 19 April 1993 after interview with the plaintiff on or shortly before that date, he found movement in the wrists to be significantly restricted. He assessed 18% loss of efficient use of the right arm and 12% loss of efficient use of the left arm at the wrist. This condition was considered permanent. That seems not in conflict with Dr Gillespie's assessment, albeit it is more precise. Dr Roebuck reviewed the plaintiff on 27 April 1994 and confirmed his previous opinion. His prognosis was:

He still has a permanent alteration to his employability making him
unable to return to his pre-injury occupation and fit only for light
sedentary work permanently and there is no treatment that would
significantly help him.

34. The plaintiff was also reviewed by Dr Raymond Newcombe, a neurosurgeon, on 11 June 1993. He found spondylytic changes at C5-6 and C6-7 levels. Otherwise the findings were consistent with those of Dr Roebuck. He expressed the hope, at that time:

... that his pain in the neck will sufficiently improve to allow him
to do some work. Clearly, limitation of wrist movement limits work
as a carpenter. It is not yet clear to what extent he will be able
to resume occupations of that kind.

35. Dr Owen White, a neurologist, saw the plaintiff about 17 September 1993. The complaints were the same, save that Dr White expressly refers to complaint about headaches twice weekly. In his report of 16 April 1994, Dr White found the plaintiff's major disability to be the wrist pain and disability. He considered that neck pain had "largely resolved". There was some depression requiring treatment, a consequence of the plaintiff's lack of employability.

36. In Dr White's opinion, the plaintiff remained unfit to return to his pre-accident employment.

37. The most recent assessment tendered was that of Dr Robert Scott, an occupational physician. Dr Scott's opinion was:

... his expectations of finding a manual job, such as his pre-injury
occupation as a form (sic) carpenter, are slight - especially with
his symptoms, examination findings and history of worker's
compensation, and no employment since 24 December 1993.

Because of these facts together with his age and his limited
education and command of the English language, I would anticipate he
would have difficulty in finding a suitable occupation. Such a job
would require minimal power use of his hands, reasonable command of
English and mental skills. It is difficult to imagine such a job.

I respectfully agree with Dr Scott's view.

38. It was suggested that a job as a cleaner would be open to the plaintiff. Mr Robert Burge of City Group gave evidence as to his company's employment policies. It is true, I think, that the plaintiff could perform all but the heavier cleaning tasks. Whether he could do so on a full time basis seems doubtful in the light of his employment history since the accident. However, he does have, I accept, some residual capacity for employment. That is, perhaps, illustrated by the extent to which he maintained employment since his accident, although that needs to be discounted somewhat in view of his relationship to that employer and his inability to handle heavier duties.

39. The injuries are of moderate severity. They probably would cause mild inconvenience to a clerical worker. However, they are a major problem for a manual worker such as the plaintiff. There is no reasonable prospect that he could re-train for clerical work.

40. I consider an appropriate award for general damages to be $40,000.00. I award $2,065.00 for interest thereon on the conventional basis.

41. On 6 July 1994, out-of-pocket expenses were agreed at $1,299.65. Given the stability and nature of the plaintiff's continuing disabilities, no further expenses were then or are now likely.

42. It was also agreed that compensation payments made to that date were $30,773.86. The Fox v Wood component was agreed at $8,827.00.

43. Loss of earnings presents a less than clear picture. During the financial year before his accident, the plaintiff's average net weekly earnings were $347.15. During the 18 weeks before his accident, his average net weekly wage was $661.88. For that financial year, however, the plaintiff was, due to his injury, off work, save for a few days, for the remainder of it. He was completely off work due to the injury for about two months of the next financial year earning only $12,680.00 net, an average of only $292.00 per week net for those 10 months.

44. The nature of the plaintiff's employment was such that, had he not been injured, it is unlikely he would have sustained a yearly average of $661.88 for that or the following financial year. No doubt, he would have done better than he had done for the previous financial year.

45. It was suggested that wage records of Messrs Ficovic and Martin, formwork carpenters, provided guidance as to the plaintiff's likely continuing earnings with the defendant. Their employment terminated towards the end of the 1992/93 financial year. Mr Backhouse, a director of the defendant, gave evidence of declining demand for formwork carpenters leading to those long term employees being retrenched. He did, however, indicate that they were employed by other companies thereafter but at what rate of pay he did not say.

46. Mr De Simone of I C Formwork Services gave evidence of then current rates of payment to formwork carpenters. His evidence indicated that there was no overtime currently available and the gross weekly wage for formwork carpenters, including allowances paid, was, in total, $592.34. His evidence also suggested that his firm was in "late 1992" paying, on a comparable basis, excluding overtime, $571.34. It will be observed that wage rates had moved very little over the period.

47. It seems to me, therefore, that the high earnings enjoyed by the plaintiff in the latter part of 1992, no doubt due to overtime worked, were unlikely to have continued. Had he been fit, however, he would have found employment commanding remuneration more like the $592.34 gross paid as at July 1994. It was customary for workers such as the plaintiff to have 20% deducted for tax under the "Prescribed Payments Scheme" or "PPS". The plaintiff's tax records seem to indicate that this would have fairly approximated the tax actually payable. I would conclude, therefore, that the average rate of actual net earnings of the plaintiff over the period since the accident, balancing overtime availability against gaps between jobs, would have been $465.47 per week.

48. The total figure for loss of earnings over the period since the accident up to 6 July 1994 would, therefore, have been $42,823.24. The plaintiff actually received earnings of $13,800.00 over that period. I, therefore, award $29,023.24 for loss of earnings up until 6 July 1994.

49. In awarding interest on that sum, I note that $30,773.86 was paid to or on behalf of the plaintiff for compensation. That was, I infer, principally for the first 10 months following his accident. He received net of taxation, $21,946.86. The net figure for the award of interest is, therefore, only $7,076.38. The average rate of interest applied to actual pecuniary loss results in an award of $1,396.85.

50. It will be noted that I have not taken account of loss of earnings or of interest beyond 6 July 1994. That is for two reasons. The first is that the figures I have are current to that date only and while some could be extrapolated forward, others could not. The second is that the delay in finalising this case after that time until now is due to the plaintiff's application, which I granted, to re-open his case. It has resulted in a finding on liability which might not otherwise have followed but the additional cost by way of interest should not be borne by the defendant.

51. I turn to future loss of earnings. The plaintiff's earnings since the accident seem to me to have represented in net weekly terms approximately 50% of the earnings I am satisfied he would have received but for his injury. In so concluding, I disregard for the purposes of that calculation the first 10 months following the accident during which his employment history was atypical.

52. As at July 1994, but for his injury, the plaintiff would have had a working life of about 22 years. Of course, it cannot be assumed he would necessarily have worked to age 65. In the latter part of that period he might, in any event, have turned to less strenuous forms of employment. However, he was sufficiently skilled to do that within the building industry as well as outside of it in the carpentry trade.

53. He is now unable to pursue that trade or heavy physical work. Light duties are open to him but his earnings will be depressed and his periods of total unemployment will be greater. His past employability has, to some extent, been over-stated by reason of his brother's willingness to give him preferential treatment. Nevertheless, his contacts in the building industry are such that he will always have some measure of preference. That being said, his lack of English language skills will remain a significant limiting factor outside the Serbo-Croat speaking community.

54. I consider I should discount the total value of the plaintiff's future earning capacity as at July 1994 by 40% to take account of the real value of his residual capacity and the balance of the usual contingencies.

55. The total value of the plaintiff's future earning capacity I would assess at $375,000.00. I therefore award $225,000.00.

56. No other heads of damage were suggested. The total of the amounts I have awarded would be $307,611.74. That seems appropriate viewed globally and I direct the entry of judgment accordingly.

57. I summarise the components of the award as follows:

General damages $40,000.00
Interest thereon $2,065.00
Out-of-pocket expenses $1,299.65
Fox v Wood $8,827.00
Loss of earnings up to 6 July 1994 $29,023.24
Interest thereon $1,396.85
Future loss of earnings $225,000.00
TOTAL $307,611.74

58. The defendant submitted, on the question of costs, that the plaintiff should be denied all costs after the application made by him to re-open his case and that he should pay the defendant's costs thereafter.

59. On 9 September 1994, I ordered that the defendant's costs of the application to re-open the case and any costs thrown away as a result of it should be paid by the plaintiff.

60. The matter occupied two full days on 5 and 6 July 1994. Had the matter been as thoroughly prepared and presented as ultimately it was, another day would have been required. The matter would have concluded on Thursday 7 July 1994.

61. As it happened, the matter came on for hearing on 2 February 1995 when, due to other court commitments intruding , the case could not be heard. It was finally heard on 27 April 1995. It then occupied a little more than half a day.

62. In my view, the defendant should have its costs of the wasted day in February 1995. It would not have been necessary but for the re-opening of the plaintiff's case. However, the half day on 27 April 1995, would have been necessary in any event. I do not think that the delay in the happening of that part of the hearing has made any difference to the costs actually incurred. The costs of that day should be part of the plaintiff's costs generally and I so order. Any additional costs occasioned to the defendant resulting from the delay in hearing the evidence actually taken on 27 April 1995 which should have been presented on 6 or 7 July 1994, should, if identified on taxation, be paid by the plaintiff. That is, however, already covered by my order of 9 September 1994.

63. Otherwise, the defendant is to pay the plaintiff's costs of and incidental to the action.