Artur Fatur v Ic Formwork Services Pty Limited and Civil and Civic Pty Limited [2000] ACTSC 14 (15 February 2000)

Last Updated: 29 February 2000

Artur Fatur v IC Formwork Services Pty Limited and Civil and Civic Pty Limited

[2000] ACTSC 14 (15 February 2000)

CATCHWORDS

NEGLIGENCE - personal injury - injury to shoulder when walking down a ramp at work on building site - whether surface of ramp slippery or loose - delegation of duty to take reasonable care - whether Kondis principle relevant - application of ordinary test of whether reasonable care taken.

STATUTORY NEGLIGENCE - whether failure to comply with statutory standard constitutes negligence - it does not, unless failure unreasonable.

STATUTORY DUTY - Scaffolding and Lifts Regulations - breach of reg 73(2) - failure of defendants to provide safe means of access - whether duty extended to head contractor - it did - extent of application of Buckman - whether regulation repealed by Occupational Health and Safety Act- it was not.

DAMAGES - injury to shoulder - previous injury in 1993 - claim for inability to return to physical work - settlement in 1995 - subsequent return to work - possibility of shoulder recovery.

CONTRIBUTION PROCEEDINGS - two tortfeasors both guilty of breach of statutory duty - contribution provisionally apportioned as 50 percent subject to further submissions.

Scaffolding and Lifts Act 1912 (NSW), reg 73

Occupational Health and Safety Act 1989, s 95

Law Reform (Miscellaneous Provisions) Act 1955, s 12

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

O'Connor v SP Bray Limited [1937] HCA 18; (1937) 56 CLR 464

Smith v Cammell, Laird and Company, Limited [1940] AC 242

Trott v W E Smith (Erectors) Limited [1957] 1 WLR 1154

Brown v National Coal Board [1979] UKPC 1; [1962] AC 574

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

Canberra Wall Frames v White [1999] FCA 1810

Krznaric v Taara Formwork Pty Limited (1986) 69 ACTR 1

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

MBP (SA) Pty Ltd v Gogic [1991] HCA 3; (1991) 171 CLR 657

Fox v Wood [1981] HCA 41; (1981) 148 CLR 438

Nominal Defendant v Australian Capital Territory [1999] FCA 446

TAL Structural Engineers Pty Limited v Vaughan Constructions Pty Limited [1989] VR 545

Pennington v Norris [1956] HCA 26; (1956) 96 CLR 10

Contribution between persons liable for the same damage, New South Wales Law Reform Commission, Report 89, March 1999, at 90-91

No. SC 778 of 1997

Judge: Miles CJ

Supreme Court of the ACT

Date: 15 February 2000

IN THE SUPREME COURT OF THE )

) No. SC 778 of 1997

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: ARTUR FATUR

Plaintiff

AND: IC FORMWORK SERVICES PTY LIMITED

First Defendant

AND: CIVIL AND CIVIC PTY LIMITED

Second Defendant

ORDER

Judge: Miles CJ

Date: 15 February 2000

Place: Canberra

THE COURT ORDERS THAT:

1. There be judgment for the plaintiff in the sum of $290,000.

1. This is an action for damages for personal injury sustained by the plaintiff on 29 October 1996. On that occasion the plaintiff was returning from a lunch break and slipped and fell whilst walking down a ramp at a building site in Forrest. The first defendant was the plaintiff's employer and the formwork sub-contractor. The head contractor is the second defendant.

2. The claim is based on negligence and breach of statutory duty, the latter being an alleged breach of reg 73(2) of the Regulations under the Scaffolding and Lifts Act 1912 (NSW), since renamed, (the Scaffolding and Lifts Regulations). The relevant parts of the regulation are as follows:

"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) ...

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

3. The words "including every independent contractor from time to time engaged in that work" were inserted by amendments made in 1976.

4. The facts, which are not in dispute, or which I find established without the need to refer to the evidence, are as follows.

5. The plaintiff was born on 30 March 1941 in Croatia. He left school at the age of 15. He completed a carpentry apprenticeship and worked in Croatia as a carpenter until he migrated to Australia in 1962. Upon arrival here he began work as a carpenter at a factory in Fyshwick, then joined a building construction company for a short while and then another with whom he remained for some 20 years. He began work as a formwork carpenter for the first defendant in February 1993. He was injured in a motor vehicle collision a few months later. He received injuries to his neck and back. In 1995 he settled a claim for damages for $270,000. The claim included an allegation that as a result of the neck injury and an injury to the mid and lower thoracic area he would be unable to return to physical work. He also claimed to be suffering from post-traumatic stress disorder. However, as a result of, or at least subsequent to, the settlement of his claim, he re-commenced work with the first defendant in February 1996. He gave evidence that he intended to continue working until age 65 or "when I could". In August 1996 he had surgery on his right knee and was on sick leave for a couple of days.

6. On 18 October 1996, the first defendant commenced the formwork construction on the building site at Forrest. On that day or within a few days the plaintiff was directed to carry out his duties in relation to formwork being constructed in an excavated basement area. The basement area was to be used eventually as a car park and the formwork appears to have been for the purposes of a liftshaft.

7. Access to the area where the plaintiff was working was by a ramp leading from a road, apparently unformed, at ground level.

8. There were various descriptions of the size, slope and nature of the ramp. I think that it is likely that the most reliable description of the surface ramp was given by Mr Ian Bowyer, the site manager for the second defendant. According to his evidence, the ramp consisted of a clay base fill topped with a road base mix of crushed concrete blue metal and concrete dust some 10 to 15 millimetres in thickness. The fill had been placed by a sub-contractor after the "bulk" excavation. The topping had been compacted by the sub-contractor using earth-moving equipment.

9. Unfortunately Mr Bowyer was, in effect, prevented from giving clear evidence of the dimensions of the ramp because he was going to use the excavation plans for that purpose and the plans had not been disclosed on discovery. However, on the rest of the evidence I conclude that the ramp was some 12 metres in length and the excavation was some three metres in depth and that the estimate of about 15 degrees of gradient is about correct.

10. The main purpose of the ramp was to provide access for vehicles and heavy plant to the basement area, but it was also intended that, at least in the initial stages, before construction of permanent walls and stairs, the ramp would be used by workers proceeding on foot to and from the basement area.

11. At some stage soon after the construction of the ramp there was a "near miss" between a vehicle and a pedestrian which caused the second defendant to erect a fence of plastic webbing held in place by steel pickets in order to separate pedestrians from vehicular traffic. It was not part of the function of the fence to provide a handrail or other support for pedestrians walking up or down the ramp. There was a dispute in the evidence whether the fence was in place at the time of the plaintiff's injury. The plaintiff and his witness, Mr Shane Dorsett, who was a workmate of the plaintiff, said it was not. Mr Bowyer and Mr Matthew Mikac, then a sub-foreman of the second defendant, said that it was. In my view, the presence or absence of the fence bears in no way on the issue of the liability of either of the defendants. If the question needs to be resolved, I find that it has not been established that the fence was erected before the plaintiff's injury. However, I also find that it was not built in order to obviate the sort of injury sustained by the plaintiff, it was not built as a response to the injury sustained by the plaintiff and it would have been of no consequence in reducing the risk of injury of the nature suffered by the plaintiff if it had been in position at the time.

12. The gravamen of the plaintiff's claim in negligence is that the surface of the ramp was slippery, or loose, or both, and that the danger it presented in this respect was increased by the passage of trucks whose wheels spun and dislodged the surface materials. The plaintiff gave evidence that he had slipped and fallen on two other occasions in the preceding days and had reported this to the first defendant's foreman, whose name he knew only as Reiner. However, the plaintiff was not an impressive witness and I am not convinced that he made the complaints as he alleged. If he had made such complaints, I would have expected the absence of the foreman as a witness for the plaintiff to have been the subject of explanation. It was not, except to the extent that the plaintiff was asked for an explanation during cross-examination and the explanation given by him was, in my view, unconvincing.

13. The plaintiff, on his own evidence, continued to work from 1 November to 5 December. He did not give any evidence of difficulty using the ramp during this period. Mr Dorsett said in evidence that, although he had never fallen over, he had been up and down the ramp several times where his feet slid "a bit here and there". He was not an impressive witness either, and except to the extent that he said that he saw the plaintiff immediately after he fell, I do not find Mr Dorsett's evidence of assistance.

14. The first defendant, as the plaintiff's employer, was under a duty to provide a reasonably safe system of work and a reasonably safe place of work, the latter including, I would think, reasonably safe access to and from the place of work. But the ramp was not under the control of the first defendant. If the ramp was unsafe, there was little or nothing the first defendant could do about it, at least in the first instance, except perhaps to complain to the second defendant. But there was no cause for complaint unless the danger was known to or should have been known to the first defendant, and in view of my findings about the plaintiff's lack of complaints, I do not think that the danger of persons slipping whilst walking down the ramp was so great that the first defendant was required to do anything about it.

15. However, counsel for the plaintiff relied upon the principle that an employer cannot "delegate" to another the duty to take reasonable care for the safety of an employee: Kondis v State Transport Authority [1984] HCA 61; (1984) 154 CLR 672.

16. The Kondis principle, if it may be called that, is most clearly applicable where an employer engages sub-contractors. The employer is under a duty to ensure that reasonable care is taken by the sub-contractor. However, it is less clear that the principle should apply in situations like the present where the employer has never had overall control of the operations. It could not be said in any real sense that the first defendant "delegated" the duty of care to provide a reasonably safe means of access to the second defendant. In such a situation, I think that the question whether the employer is liable to the injured worker is addressed, not by reference to the Kondis principle, but by applying the ordinary test of whether in all the circumstances the employer has taken reasonable steps to ensure the safety of the employee.

17. The Kondis principle in any event applies only where the "delegate" has failed to take reasonable care. The case against the second defendant brought by the present plaintiff is similar in nature to that brought against the first defendant, based on the alleged dangerous state of the ramp which, it is alleged, could have been avoided by the exercise of reasonable care. The difficulty in the plaintiff's case in this respect is that it does not come to grips with the question of what steps were reasonably necessary in order to minimise the risk to pedestrians using the ramp. It is not enough to say that the ramp was too steep or the surface too slippery or too loose. At about 15 degrees the gradient was about the same as that of the grassy slopes that cover Parliament House and over which people roam at will at all hours. I reject the submission that the evidence shows that the plaintiff and other workers had to pick their way down the slope, traversing back and forth across it, or, as it was put at its highest by counsel, "crab-wise". I reject the allegation that the surface was slippery in the sense that it was so smooth that it did not provide reasonably sufficient traction for the footwear of pedestrians. I think that it is likely that some of the aggregate used in the topping on the ramp was dislodged from time to time in places by trucks or other vehicles or by plant, but on the evidence, the aggregate was the usual mixture suitable for road surfaces in such situations. Furthermore, it was of the nature of the operation that part of the materials might be dislodged from time to time without the need for immediate further compacting. In my view, there was no failure on the part of the second defendant to exercise reasonable care for the safety of persons using the ramp. The case against the first defendant in this respect is even less impressive, since it had no control over the ramp.

18. There are, however, two other aspects of the plaintiff's claim on liability which need to be considered, both closely related. One is what is sometimes called "statutory negligence", the other a claim based not on negligence but on breach of a duty laid down by regulations made under statute, namely reg 73(2) of the Scaffolding and Lifts Regulations. I deal with these in turn.

19. Breach of a statutory provision prescribing a standard of safety is prima facie evidence of a failure to take a step which would minimise the risk of harm to a person likely to be injured as a result of such failure. In this sense the failure to comply with the statutory standard can be pleaded as a particular of negligence as appears to have been done in the plaintiff's statement of claim. However, such a breach does not constitute negligence unless it involves conduct which can be condemned as unreasonable: O'Connor v SP Bray Limited [1937] HCA 18; (1937) 56 CLR 464. For reasons already given, I do not think that the failure on the part of either of the defendants to provide safe access to the plaintiff was unreasonable in the circumstances.

20. However, where the statute or regulation imposes a duty on a class of persons to take care for the safety of another class of persons, the breach of duty by someone in the former class will result in a right of action for a person in the latter class injured as a result of the breach. If the duty is couched in absolute terms, the plaintiff does not have to prove that the defendant's conduct is unreasonable and it is no defence to say that compliance is unreasonable or impracticable: Smith v Cammell, Laird and Company, Limited [1940] AC 242.

21. Under reg 73 the duty is cast upon any person who carries out building work. The duty is directed at the protection of persons engaged in the building work. The exact scope of the duty as prescribed by reg 73(2) is to provide and maintain safe means of access to every place of work in which any person has to work at any time. There is nothing that restricts the scope of the duty to what is practicable or reasonable. A means of access is unsafe if it is a possible cause of injury to anybody acting in a way that a person may be reasonably expected to act in circumstances which may reasonably be expected to occur: Trott v W E Smith (Erectors) Limited [1957] 1 WLR 1154, Brown v National Coal Board [1979] UKPC 1; [1962] AC 574 per Lord Denning at 596.

22. The ramp was a means of access to the plaintiff's place of work in the basement. It was unsafe or dangerous because its surface being loose or unstable in parts was a possible cause of injury to persons like the plaintiff, who were likely to be walking down the ramp. Neither defendant provided safe means of access, and that failure resulted in the plaintiff's injury.

23. It is clear enough that the first defendant was carrying out building work being the construction of formwork for the liftshaft of the proposed building. It was conceded on behalf of the second defendant that the first defendant was carrying out building work, but it was submitted on behalf of the second defendant that, although it engaged various sub-contractors, including the first defendant, to undertake work to carry out the project, the second defendant was not carrying out the building work in which the plaintiff was engaged at the time of his injury. Therefore, a duty imposed by the regulation did not extend to the plaintiff. The decision of the High Court in  H C Buckman and Son Pty Limited v Flanagan [1974] HCA 30; (1974) 133 CLR 422 was claimed to be authority for the proposition that the duty of compliance with reg 73 is imposed upon "those carrying out the work alleged - not upon the head contractor".

24. However, my understanding of the High Court decision is to the contrary, especially when it is read in the light of the addition in 1976 of the words "including every independent contractor from time to time engaged in that work". The duty is imposed on any person who carries out any building work either directly or by servants, agents or independent contractors. The regulation expressly requires a person who carries out any building work either directly or by servants, agents or independent contractors, to take necessary measures to prevent injury to persons engaged in such building work. Thus, the regulation is cast widely enough to require a person, who, in pursuance of an undertaking being the erection of a building, engages a sub-contractor to construct the formwork incidental to the erection of the building, to take all measures for the prevention of injury to persons engaged in the construction of the formwork. The necessary measures include the provision and maintenance of safe means of access to every place at which those engaged in the construction of the formwork have to work at any time. Thus, the duty to comply with reg 73(2) is imposed on both defendants. Buckman applies only to the extent that the breach may not be relied upon by a person who is both engaged in the building work and carrying on the building work: see also Canberra Wall Frames v White [1999] FCA 1810.

25. The position generally was summarised by Jacobs J in Buckman at 445 in the following terms:

"The obligation is imposed on persons carrying out building work. These words envisage a degree of control over the particular building work and are used distinctly from `engaged in building work', words which do not contain any element of control or direction of the work. The obligation is an absolute one and cannot as an obligation be delegated to another, whether that other be an employee or a sub-contractor."

26. Reliance was also placed on Krznaric v Taara Formwork Pty Limited (1986) 69 ACTR 1, but that was a case concerned with the safety of ramps under reg 94 and the duty of compliance imposed by reg 6. Under the terms of reg 6 the duty does not extend to a person who carries on building work through an independent contractor as provided for in reg 73(2). It may well be that those responsible for the amendments to the regulations in 1976 overlooked the need for an amendment to reg 6 to correspond with that in reg 73. That may be a matter of interest to the legislature or to the Law Reform Commission or indeed to anyone else interested in industrial safety. However, it does not bear on the present case.

27. It was further submitted on behalf of the second defendant that reg 73 as a whole ceased to be of any efficacy since the passing of the Occupational Health and Safety Act 1989 (the Occupational Health and Safety Act). It is clear from s 95 of this legislation that no private rights such as those conferred by the Scaffolding and Lifts Act and Regulations are intended to be conferred by the Occupational Health and Safety Act:

"95. Civil liability not affected

Nothing in this Act or the regulations shall be taken -

(a) to confer a right of action in any civil proceedings in respect of any contravention of any provision of this Act or the regulations; or

(b) to confer a defence to an action in any civil proceedings or affect a right of action in any civil proceedings."

28. The extent to which the Occupational Health and Safety Act repeals by implication any of the provisions of the Scaffolding and Lifts Act or Regulations is not clear. Section 96 (since amended) of the Occupational Health and Safety Act provided at the relevant time:

"96. Inconsistency with associated laws

A provision of an associated law has no effect to the extent that it is inconsistent with this Act or the regulations, but such a provision shall be taken to be so consistent to the extent that it is capable of operating concurrently with this Act and the regulations."

29. Associated laws are defined in the definition section of the Act, s 5, as meaning any of the following (since amended):

"...

(g) the Scaffolding and Lifts Act 1957;

(h) the Scaffolding and Lifts Act 1912 of the State of New South Wales in its application in the Territory;

(i) the Regulations under the Scaffolding and Lifts Act 1912 of the State of New South Wales in their application in the Territory."

30. Counsel for the second defendant was, however, not able to identify any provision of the Occupational Health and Safety Act which is inconsistent with the Scaffolding and Lifts Act or Regulations, or inconsistent in particular with reg 73(2). I therefore conclude that reg 73(2) continued in force at the time of the plaintiff's injury and that, therefore, the plaintiff is entitled to rely on the breach of duty on the part of both defendants to found liability in an action for damages for the injury he received.

Damages

31. The plaintiff fell backwards and landed on his outstretched left hand. He worked on that day but with pain in his left shoulder, which led him to Calvary Hospital that night. X-rays of the shoulder detected nothing abnormal. He was certified fit to return to work on 1 November 1996 and he did that. However, with increasing pain in the left shoulder he stopped work on 5 December 1996 and has never resumed. He regards himself as permanently unfit for any sort of work. His evidence and his complaints to the doctors are, on the whole, consistent. I note, however, that he told Dr Schaeffer, who saw him on 26 November 1998, that there was loss of feeling in the left arm, the left side of the neck and the thorax, which Dr Schaeffer said could not have possibly resulted from a "frozen shoulder".

32. On 11 December 1996 the plaintiff first consulted Dr Paek, a general practitioner, for his shoulder condition, and he has remained under Dr Paek's care ever since, subject to reference from time to time to Dr Stubbs, an orthopaedic surgeon, whose evidence I accept. Dr Stubbs describes the case as relatively straightforward (contrary to Dr Schaeffer, a neurosurgeon who concedes that it is not within his speciality). The plaintiff suffered a tear of the supraspinatus tendon of the rotator cuff of the left shoulder. Physiotherapy in the early stages was ineffective and pain-killing medication had inappropriate side-effects. The physical nature of the injury was confirmed first by an arthrogram and later on an operation under general anaesthetic when the tear was successfully repaired. However, post-operative adhesions led to a condition in the socket known as "frozen shoulder". Dr Stubbs attempted to clear the adhesions and to boost recovery by cortisone injections under general anaesthetic in late 1997. Further cortisone injections were given in May and June 1999, but the plaintiff's condition, according to him, never improved. There is still room for improvement, even for recovery, in Dr Stubbs' view, and indeed the view of all the other doctors. An assessment of the plaintiff's symptoms and disabilities depends largely upon how far he can be accepted as a witness of truth. It is clear that he has been and continues to be incapacitated for the heavy work required of a formwork carpenter, particularly those activities involving use of the left arm above the shoulder. However, he still has some residual physical capacity for work of a lighter nature which, with retraining, could be converted into a real earning capacity.

33. Unfortunately, with the plaintiff's background, his lack of English and his relatively strong financial position, it is unlikely that he will ever be convinced that he is fit to resume work and it is impossible to disentangle other causes for his continuing incapacity from the consequences of the injury in October 1996 for which the defendants are responsible.

34. On the other hand, there is the possibility that the frozen shoulder syndrome will itself resolve (they do in 90 percent of cases), and one is reminded that his neck and back problems resolved after settlement of his motor vehicle claim.

35. There is no claim for damages for unpaid domestic assistance (Griffiths v Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161) and that, I think, is indicative of the sort of incapacity from which the plaintiff suffers. He lives with an adult son and the inference from the evidence is that he virtually runs the house. Although he claimed in the motor vehicle proceedings that his son had to do all the gardening, he no longer makes that claim. He now says that he pushes the lawnmower with one hand.

36. The medical evidence shows that whilst there is some limitation of movement in the left shoulder, it is not as great as the plaintiff claims. This makes it likely that the level of pain also is not as great as he claims. However, I accept that lying on the left side is painful, as is driving a car with manual gears, and that he is unable to carry out activities involving use of the left arm above shoulder level, or to carry the sorts of weights that would be expected in the job of a formwork carpenter.

37. However, this is not a case in which some discount should be allowed for the possibility that even without the subject injury the plaintiff would have suffered from incapacity of symptoms resulting from a naturally degenerative condition.

38. I propose to award the plaintiff the whole of his out-of-pocket expenses to date of trial for medical and hospital treatment and the like, agreed at $16,826.05. For the future it is reasonable for him to see Dr Paek for his shoulder every two months at his own expense (or rather at the expense of the defendants) until about age 60, after which I expect that he will find some other way to pay for it, probably through social security. I allow $1,000 for future medical expenses. No further physiotherapy or medication is indicated.

39. Loss of earning capacity for the past is not contested at $87,913. The plaintiff received worker's compensation of $46,744.73. I award interest on the difference of about $40,000 at 5 percent per annum, calculated at $6,000.

40. For the future there is a detailed report from Macquarie Reporting Services, which was admitted by consent, but not referred to in particular. I do not pretend to have read the report in detail, let alone to have understood it. Since it was not the subject of any submissions, I take it that the following assumptions made in the report are not challenged. If the plaintiff had remained in continuous employment as a formwork carpenter from the date of injury until the date of hearing:

* the plaintiff's likely net earnings would have been about $596 per week;

* the plaintiff's employer(s) would have contributed to a superannuation fund or funds of $23,504;

* the plaintiff's employer(s) would have contributed to the Australian Construction Industry Redundancy Trust $15,097.

41. No claim is made for loss of future contributions to superannuation or to the Redundancy Trust fund. The fact that such a fund exists and that employers contribute to it, is an indication that employment in the construction industry is not permanent, perhaps less so than in most industries. However, I propose to award the sums mentioned in the Macquarie Reporting Services' calculations for the expected employers' contributions to the superannuation fund and the Redundancy Trust fund for the period from date of ceasing work to date of hearing.

42. It is unlikely, in my view, that the plaintiff, if uninjured, would have continued working full-time as a formwork carpenter to the age of 65, and allowance must be made for that. Allowance will also be made for the small residual earning capacity in the future. On the 3 percent tables, the present value of the loss of $596 per week, between the date of hearing and the plaintiff's 60th birthday, is about $43,300, and to his 65^th birthday, about $178,800. I allow $100,000 for future loss of earning capacity.

43. For pain and suffering and loss of enjoyment of life, I award $40,000 and allow interest on the past component thereof ($20,000 x 2 percent per annum: see MBP (SA) Pty Ltd v Gogic [1991] HCA 3; (1991) 171 CLR 657) at $1,250.

44. The Fox v Wood [1981] HCA 41; (1981) 148 CLR 438 is agreed at $7,541.

45. In summary then, the amounts provisionally awarded under each of the heads of damages are as follows:

Past out-of-pocket expenses	$ 16,826.05
Future medical expenses	$ 1,000.00
Past loss of earning capacity	$ 87,913.00
Future loss of earning capacity	$100,000.00
Interest on past loss of earning capacity	$ 6,000.00
Superannuation	$ 23,504.00
Construction Industry Redundancy Trust	$ 15,097.00
Pain and suffering and loss of enjoyment of life	$ 40,000.00
Interest thereon	$ 1,250.00
Fox v Wood Total:	$ 7,541.00 $299,131.05

46. Globally, this appears to be a generous figure having regard to the circumstances and the plaintiff's age. At the same time, I can see no reason to interfere with the provisional calculations under each of the heads of damage. Allowing for some possible over-lapping between heads of damages, I award the round sum of $290,000 and the plaintiff is at liberty to enter judgment for that sum against both defendants.

47. Unless the parties wish to be heard, I propose to order that the defendants pay the plaintiff's costs.

Contribution proceedings

48. There are contribution proceedings between the defendants. There was but passing reference to this aspect in the addresses of counsel. The proportion of contribution by a tortfeasor is to be as is "just and equitable having regard to the extent of that person's responsibility for the damage": Law Reform (Miscellaneous Provisions) Act 1955, s 12. It is notorious that courts have been given and have given almost nothing by way of guidance as to how the power of apportionment of damages among tortfeasors is to be exercised. The subject was touched on by a Full Court of the Federal Court in Nominal Defendant v Australian Capital Territory [1999] FCA 446 and in a report of the New South Wales Law Reform Commission, Contribution between persons liable for the same damage, Report 89, March 1999, at 90-91. Where contribution is sought by a defendant from a plaintiff who bears responsibility for contributory negligence, the High Court has said that the test is the respective degrees of departure from what is reasonable: Pennington v Norris [1956] HCA 26; (1956) 96 CLR 10 at 16. That, however, is not a test in the present case as between the two defendants because negligence has not been established against either of them. The liability of each of those defendants arises from its breach of reg 73(2) under the Scaffolding and Lifts Regulations. The regulations do not distinguish between degrees of duty to provide safe means of access on the part of persons who carry out the building work. It has been held that where liability arises from breach of statutory duty, a tortfeasor will have the right to claim contribution from another tortfeasor: TAL Structural Engineers Pty Limited v Vaughan Constructions Pty Limited [1989] VR 545, but in that case it was found that the tortfeasor from whom contribution was sought was liable to the plaintiff for either breach of a common law duty of care or breach of statutory duty. In the absence of any guidance in the statute or from judicial authority or practice or any particular factor to which counsel was able to draw attention, it seems to me that where two tortfeasors are both guilty of a breach of statutory duty, or at least a breach of the absolute duty imposed by reg 73(2), then the only way contribution may be apportioned between them is that each should bear 50 percent of the liability. However, I will not give a final decision in that matter until counsel have had an opportunity to make further submissions. In this respect I allow a further 14 days in which counsel for each of the defendants may make further written submissions on the amount of contributions and the costs of the contribution proceedings. Again, in the absence of further submissions, I would order that each defendant bear its own costs of the contribution proceedings.

I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, the Chief Justice.

Associate:

Date: 15 February 2000

Counsel for the plaintiff: Mr G Stretton

Solicitor for the plaintiff: Snedden Hall & Gallop

Counsel for the first defendant: Mr F G Parker

Counsel for the first defendant: Deacons Graham & James

Counsel for the second defendant: Mr D Nock

Solicitor for the second defendant: Ken Cush & Associates

Date of hearing: 27 October 1999

Date of judgment: 15 February 2000