Lafrenais v Estate of Heaton-Harris & Ors [2006] ACTSC 22 (29 March 2006)

Last Updated: 6 April 2006

RICK LAFRENAIS v ESTATE OF NICHOLAS HEATON-HARRIS & OTHERS [2006] ACTSC 22 (29 March 2006)

EMPLOYMENT INJURY - worker falls from unsafe scaffolding - dispute over employment status

DAMAGES - personal injuries, no issue of principle.

Scaffolding and Lifts Regulations 1950, reg 73

Morgan v Kittochside Nominees Pty Ltd (2002) 117 IR 152

Nguyen v ANT Contract Packers Pty Ltd [2003] NSWIR 1006

Bankstown Foundry Pty Ltd v Braistina [1986] HCA 20; (1986) 160 CLR 301

Podreberesk v Australian Iron and Steel [1985] HCA 34; (1985) 59 ALR 529

R Cullen, A Servant of Two Masters? The Doctrine of Joint Employment in Australia (2003) 16 AJLL 359

No SC 58 of 1998

Judge: Connolly J

Supreme Court of the ACT

Date: 29 March 2006

IN THE SUPREME COURT OF THE )

) No SC 58 of 1998

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: RICK LAFRENAIS

Plaintiff

AND: ESTATE OF NICHOLAS

HEATON-HARRIS

First Defendant

AND: THE NOMINAL INSURER

Second Defendant

AND: LANDMARQUES PTY LIMITED

Third Defendant

AND: CROATIA DEAKIN SOCCER CLUB INCORPORATED

Fourth Defendant

AND: HIH CASUALTY & GENERAL

INSURANCE LIMITED

(In Liquidation)

Fifth Defendant

ORDER

Judge: Connolly J

Date: 29 March 2006

Place: Canberra

THE COURT ORDERS THAT:

1. The parties have leave to bring in short minutes to reflect these findings on liability and damages, and to resolve contribution issues in terms of these findings.

1. This is a claim for damages for personal injuries arising from a workplace accident that occurred on 7 February 1994. On that day the plaintiff, Mr Lafrenais, was engaged in labouring duties on the construction site for the new Croatia Deakin Soccer Club premises at Deakin in the Australian Capital Territory. This was a major renovation for one of Canberra's larger sports and social clubs, and the building under construction was a three level structure. Scaffolding had been erected but, it is common ground, the scaffolding was not safe, in that safety fencing was not fully installed around the scaffolding. The evidence was that during the erection of the scaffolding, materials had run out, and so, incredibly, there were safety rails erected on the lower levels but on the upper level, being the third floor level some nine metres above ground level, there was no safety barrier. I accept from the evidence that the plaintiff tripped on the final step while going up the stairs to the top level and fell, skidding across the top landing of the scaffolding. This should have been a minor accident, had the scaffolding been erected safely and had the barriers that were in place on the lower levels been in place at the top level. But in the absence of any safety barrier, the plaintiff slid over the top of the scaffolding and fell nine metres to the ground. He is fortunate indeed that he was not killed or paralysed by the fall. He sustained fractures to his arms and blows to his knees and to his wrists and head.

2. An expert report was tendered in the plaintiff's case from Dr BN Emerson, a chartered professional engineer and past President of the New South Wales and national branches of the Safety Institute of Australia. I accept Dr Emerson's opinion that it is unsafe to erect a scaffold, including stairs to a scaffold, without safety fencing. Indeed, this is such an obvious conclusion that one would expect that this concession could have been made without the aid of a report, but, given the way this matter has progressed, it was appropriate for the plaintiff to engage an expert to give this evidence.

3. I find that the accident occurred because of the, frankly, appalling breach of safety standards. These types of accidents should not occur on building sites. Unfortunately, it seems that there had not been a site inspection by either the regulatory authorities or the relevant trade union, either of whom would, no doubt, have immediately shut the site down until this dangerous scaffolding was made safe. The facts as set out above should have lead to immediate worker's compensation payments and the expeditious settlement of any personal injuries claim. Unfortunately, this matter has taken over ten years to resolve, primarily, it seems to me, because everyone involved in the construction seeks to blame someone else and no one will acknowledge being the plaintiff's employer.

4. The parties to this action, which has had no little procedural complexity over the years, are -

First Defendant - The estate of Nicholas Heaton-Harris.

5. The plaintiff claims that Mr Heaton-Harris, who is now deceased, was his employer at the time of the accident.

Second Defendant - The Nominal Insurer.

6. Mr Heaton-Harris did not have workers compensation insurance at the time of the accident, and so the Nominal Insurer stands behind his actions.

Third Defendant - Landmarques Pty Limited

7. This company was involved in the project management of the building project at the Club. The plaintiff claims that it was either his employer or, in any event, as project managers, owed a duty to ensure that the scaffolding on the project was erected safely.

Fourth Defendant - Croatia Deakin Soccer Club Incorporated (the Club)

8. This is the Club for whom the construction work was being performed. Perhaps due to the close connection between many members of the building industry in Canberra and the Club, there was a very close connection between the Club itself and the building work. The plaintiff brings the claim against the Club as being either his employer, or as the occupier of the premises with a duty to ensure that the scaffolding was safe.

Fifth Defendant - HIH Casualty and General Insurance Ltd

9. This company, which of course collapsed some years ago, was the workers compensation insurer for Landmarques.

10. Certain of the defendants have issued contribution notices against other defendants, which I will address in due course.

Who, if anyone, was the plaintiff's employer?

11. The plaintiff was born in 1958 in Sydney, and attended schools in western Sydney to Year 9, and then worked as a welder. In about 1987 he moved to Bendalong on the south coast and worked as a fabricator with Ulladulla Roof Trusses for about seven years, and then took up work with a local concrete contractor as a concrete finisher, and then as a driver for a local baker. In about 1993 he and his partner moved to Canberra where he obtained work for about a year as a plasterer. Towards the end of 1993 he found work with a Mr Steve Rattenbury as a concrete finisher. The plaintiff says that Mr Rattenbury was running out of work and intending to have time off over Christmas. Mr Rattenbury took the plaintiff to the major construction site at the Croatia Deakin Soccer Club where he was introduced to a Mr Valtonen. Mr Valtonen was the site foreman employed by Landmarques. The plaintiff says, and I accept, that he was offered work to start on the following Monday, and he reported for duty, being answerable to Mr Valtonen, but also accepting instructions from his senior officers in Landmarques, Mr Bullen and Mr Rezzo.

12. The plaintiff says, and this is confirmed in documents, that he was at first paid directly by the Croatia Deakin Soccer Club. He says that he worked out an hourly rate with Mr Valtonen and was told that he would be paid weekly, but that the cheques were from the Club. The plaintiff says that after a few weeks he was told by Mr Valtonen that the Club wanted to change the way it paid workers, and that payment would in future be monthly. This was of concern to him because he had two young children to support. He says that after this Mr Heaton-Harris, who had been on holidays, was back on the site. Mr Heaton-Harris held the scaffolding licence on the site. The plaintiff says that Mr Heaton-Harris approached him and said that he would "put me on his books and pay me weekly". From this point onwards the plaintiff was paid weekly by Mr Heaton-Harris, and also took instructions and directions from him as well as Mr Valtonen in relation to his work on the site, which was in the nature of general labouring duties. He says, and I accept, that tools would be supplied by Mr Heaton-Harris and by Landmarques.

13. The plaintiff says, and I accept, that in the week before the accident, he was engaged in some forklift driving and scaffolding work, as well as patching some concrete. He says that he was "working with Heaton-Harris", but also accepted directions from the Landmarques officials. He says that about a week and a half before the accident he was asked by Mr Valtonen to work with Mr Heaton-Harris to erect a set of stairs to the scaffolding because the stairwell in the building needed to be used for other purposes. He says that he met Mr Heaton-Harris early in the morning, and they constructed the scaffolding stairs. The materials were stored on a site across the road, and he says that he brought this over with the forklift and they erected the scaffolding stairs, which I accept were as shown in exhibit A save for the lack of safety rails, during one morning. He says (T 22) that -

We erected the scaffold but we run out of safety fencing that goes across each side. We'd only had one bit, we only had one bit for the bottom and that was it, we run out for the rest of the scaffold.

14. The plaintiff says that he told Mr Valtonen that they had run out of safety fencing. This was denied by him, but I am inclined to accept the plaintiff's evidence on this point. In any event, it would have been perfectly obvious to any project manager on site that the stairs to this project, which went to three levels above the ground, did not have safety rails, and were unsafe. I accept that Mr Valtonen was told this, but even if he had not been told, I find that he and his employer, Landmarques, should have known and can be taken to have known of this safety issue.

15. The plaintiff says that he was told that additional safety fencing had been ordered and was on its way, but it never arrived. Exhibit A contains a series of photographs of the scaffolding taken some time after the accident, and in these, particularly in photograph 2, the steel mesh safety fencing is obviously present. I accept the plaintiff's evidence that this was not present on the day of his accident, and I find that its absence would have been obvious.

16. On the day of the accident, I find that the plaintiff was working on the site engaged in forklift driving and general labouring duties. He says that during the course of the day he borrowed a tool from a fellow worker to give to another labourer who was working on the top level of the building. At knock-off time the tool had not been returned, and the plaintiff went up the stairs to retrieve it. He says that he went up the stairs fairly quickly, and that at the top level he kicked or caught the top step with his steel capped boot and fell forward over the steel platform at the top of the stairs. He then skidded forward over this and fell to the ground.

17. I accept that the accident occurred as described by the plaintiff, and I find that this occurred due to the absence of the safety fencing. I do not find that there was contributory negligence, as it seems to me that a labourer going up the stairs in a hurry at knock-off time in order to retrieve a tool amounts, at most, to the type of momentary inadvertence that an employer is expected to guard against. I find that the plaintiff knew that the stairs were dangerous, and indeed it is his evidence that he pointed this out to his superiors. But, as a labourer on a building site and a man who was very keen to find work to support his family, it seems to me that he had little option but to continue to work. I do not accept that it amounts to contributory negligence for a worker, particularly a general labourer such as the plaintiff, to continue to work in a dangerous environment when that danger has been created by others who control his work and who have the power to hire and fire.

18. The plaintiff was paid an hourly rate. He retains his invoices that he presented for payment. These were tendered as exhibit B in these proceedings. It was argued that, because he was charging by the hour, he was a contractor and not an employee. I am of the view that the plaintiff was engaged as an hourly worker, and that although his hours were not regular, he was an employee labourer.

19. The real question is for whom did he work? Mr Maxwell, for the plaintiff, in his written submissions, floated the possibility that the Australian common law may recognise the concept of multiple employers of the one worker at the one time. Joint employment is an interesting concept that has been recognised as forming part of American law. (R Cullen, A Servant of Two Masters? The Doctrine of Joint Employment in Australia (2003) 16 AJLL 359.) There have been references to the possible application of the doctrine to an appropriate factual basis in Australia in decisions of the Full Bench of the Australian Industrial Relations Commission in Morgan v Kittochside Nominees Pty Ltd (2002) 117 IR 152 and the New South Wales Industrial Commission in Nguyen v ANT Contract Packers Pty Ltd [2003] NSWIR 1006. Mr Maxwell acknowledged, however, that neither decision went so far as to make a finding of joint employment. In an increasingly deregulated labour market, with labour hire companies and seemingly increasing efforts to create a situation where day labourers are structured as independent contractors, this doctrine may need to be further considered in Australia, but, it seems to me, that it is unnecessary for me to go so far in this case.

Liability of the first defendant

20. On all the evidence I am satisfied that the plaintiff was an employee of Mr Heaton- Harris. He accepted directions from him and, importantly, he was paid by him. While he was first engaged by Landmarques, and accepted directions from Landmarques, he was paid directly by the Club. During this period of time, the status of his employment would have been more problematic, and indeed could have given rise to a need to consider the doctrine of joint employment. But, it seems to me, by the time of the accident, he was performing his general day labouring duties under the direction of Mr Heaton-Harris (although also accepting instructions, without demurrer by Mr Heaton-Harris, from Landmarques), and was being paid by Mr Heaton-Harris.

21. Mr Valtonen gave evidence that, generally, when he wanted something done he would give instructions to Mr Heaton-Harris, who would then organise the labourers, including the plaintiff, although he would occasionally give direct instructions. Mr Valtonen said that Mr Heaton- Harris had supplied about five to ten labourers on the site at any given time, and that he understood the plaintiff to be one of Mr Heaton-Harris' labourers (T 240). There was also evidence that during this time the plaintiff did a number of outside jobs for Mr Heaton-Harris, which would further confirm that he was Mr Heaton-Harris' employee.

22. The documents in exhibit B show that in the first two invoices the plaintiff billed the Club for his hours worked, and it is his evidence that he was paid by the Club. After the arrangement with Mr Heaton-Harris, the invoices were all to Mr Heaton-Harris. The hourly rate of $17.50 remains the same throughout. It was argued by Mr Stretton who, in appearing for the Nominal Insurer, was in effect contesting Mr Heaton-Harris' status as an employer, that Mr Heaton-Harris was merely doing a good deed by transferring the plaintiff to his books so that he could be paid weekly. It emerged from documents tendered in the hearing that, while Mr Heaton-Harris was passing on to the plaintiff the agreed sum of $17.50 per hour, he was in fact billing his labourers' services to the Club at the rate of about $27.50 per hour. This appears at exhibit E which shows Mr Heaton-Harris billing the Club for various activities conducted by his labourers, where he billed at a set price for the described job or jobs and then attached an hours worked list, and in each case the job price works out as the hours worked at $27.50 per hour. The Club, it seems to me, could have taken comfort from this and assumed that the premium rate charged reflected the fact that Mr Heaton-Harris was supplying labourers who were his employees and were covered by his workers compensation and other insurances.

23. I find that Mr Heaton-Harris was the plaintiff's employer at the time of the accident, and was clearly in breach of his non-delegable duty as an employer in requiring the plaintiff to work on a building site that was clearly unsafe to Mr Heaton-Harris' knowledge.

24. I also find that Mr Heaton-Harris, as the licensed scaffolder on the site and so the person responsible for the erection of the scaffolding, was in breach of his statutory responsibilities under general ACT occupational health and safety laws, and specifically obligations cast on him pursuant to the Scaffolding and Lifts Regulations 1950 (ACT).

Liability of the third defendant

25. Although it seems to me that on his initial engagement it could be said that the plaintiff was an employee of Landmarques, I am satisfied that from the time he commenced working under Mr Heaton-Harris' direction and receiving his payment from Mr Heaton-Harris, he ceased to be (if he ever had been) an employee of Landmarques.

26. It seems to me, however, that Landmarques, as the project manager of the site, had absolute control over the building site. The evidence satisfies me that the site was closed by way of fencing against the general public (although perhaps not against the Club itself) and, as project manager, this defendant has control and responsibility in relation to safety measures on the site. This would flow from the general nature of a project management contract, but it is supported in this case by a letter from the Club to Landmarques of 21 July 1993 which confirms their engagement as Construction Manager, and lists amongst the duties of Landmarques "11. Site Safety".

27. This document also indicates that the arrangement between the Club and Landmarques was that Landmarques would be paid a set fee of some $65,000 for its services. The project was a major multi-million dollar building and it is apparent from the documents that the Club made direct payments to contractors upon certification of the payments as appropriate by Landmarques.

28. It seems to me that Landmarques, who I have found had both direct knowledge of the absence of the safety fencing, having been told by the plaintiff, and who in any event as construction managers must be taken to have been aware of the obvious lack of safety fencing, were in breach of their duty of care, owed as occupier of a building site, to persons such as the plaintiff who were lawfully on the site.

29. Moreover, it seems to me that Landmarques as the construction manager is also in breach of those statutory obligations cast on persons who directly or by their agents (including independent contractors) carry on building work by the Scaffolding and Lifts Regulations 1950. Regulation 73 relevantly provided:

(1) Any person who directly or by his or her 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 the building work and for this purpose, without limiting the generality of the foregoing, the person shall -

(a) provide suitable and safe scaffolding, which shall conform to the requirements of these regulations, for all work that cannot be done safely by a person standing on permanent or solid construction, except when the work can be done safely from ladders constructed in conformity with the provisions of these regulation; and

(b) provide and maintain safe means of access to every place where any person has to work at any time; and

(c) provide means by fencing or otherwise for securing the safety of any person working at a place from which the person would be liable to fall a distance of more than 6 feet; and

...

30. It seems to me that the failure to place fencing on a third floor scaffolding stair landing is a clear breach of this statutory duty.

Liability of the fourth defendant

31. Although there may have been a real question as to whether the Club may have been the employer of the plaintiff before Mr Heaton-Harris took over the employment, at the time of the accident any such employment relationship with the Club had ended, and the plaintiff was by that time employed, as I have found, by Mr Heaton-Harris.

32. It seems to me, however, that the alternative pleading against the Club as occupier of the premises is soundly based. Generally, when a person or body corporate engages a builder to construct or renovate premises, one would expect that, during the course of the construction activities, it would be held that it was the builder that was the occupier of the site, rather than the owner who had commissioned the building works. The evidence in this case, however, establishes that the Club took a far more active role in the building works than that of an owner. Indeed, the Club never engaged a "builder", in the sense of an entity that took full responsibility for construction, paid contractors, and billed the owner for the project cost. I am satisfied on the evidence that the Club was actively involved in the building work. It directly paid some workers and, it would seem, all contractors and gave instructions to Landmarques as to the appropriate level of labourers to be engaged on the site. There is in evidence a note from the then Club President, Mr Pratezina, to Landmarques dated 15 December 1993 which states that the Directors of the club -

discussed in detail the number of labourers that were employed on site, and concluded that two labourers should be sufficient to carry out all the necessary work needed on the site.

If extra labourers are required, the board has directed that you are to get prior approval from one of the directors ..."

33. Through its building committee, formed it seems of very experienced builders, it took an active role throughout. I find it extraordinary that there have, I was told, been few records of the deliberations of the Board of the Club or the Building Committee retained and discovered, despite the major nature of this project. The letter of 21 July 1993, however, from the Club to Landmarques, sets out the limited responsibilities of the Construction Managers (which I have found included site safety), and continued -

We also confirm that the Croatia Deakin Soccer Club is responsible for the following:

1. Direct payment of trades, supplies and labour according to relevant Contract and Award conditions and Certified Claims for such payment.

2. Co-operation with the Construction Manager in achieving the goals of the Building Programme.

3. Consultations, attendances and approvals as may be required by the Construction Manager from time to time.

34. Documents tendered as part of exhibit E show that the Club itself applied for the approval of the building work and sought the permit, apparently in its own name, and that the Club itself applied for the certificate of occupancy.

35. It seems to me that, although in many cases an owner could be said to have relinquished occupancy of a construction site to a builder, the evidence here supports the view that the Club remained an occupier during this construction period, and that it was jointly with Landmarques the occupier of the site. I am satisfied that, as occupier, it breached a duty of care to the plaintiff by failing to ensure that the scaffolding was safe. I am satisfied that the obvious hazard of the unfenced scaffolding should have come to the attention of the Club.

36. Moreover, the Club was, I am satisfied, engaged in construction activities and in breach of the statutory duty imposed by the Scaffolding and Lifts Regulations as set out in [29] above.

Deemed employment pursuant to workers compensation legislation

37. It seems to me that, as I have found as a matter of fact, that the plaintiff was a common law employee of Mr Heaton-Harris, it is inappropriate for me to go into the question of whether he would otherwise have qualified as a deemed employee of Landmarques or, potentially, the Club. It seems to me that the possible extension of liability in this manner is effectively precluded by my finding that he was at common law an employee. I asked counsel whether there was any authority for the proposition that a worker could be an employee of one entity and at the same time a deemed employee of another entity, and no authority to such effect, which seems inconsistent with general principle, was cited.

Damages

38. It was not in dispute that the plaintiff sustained injuries of some significance in this accident, and indeed he is fortunate that, having fallen some nine to ten metres, that he was not more severely injured. He was taken to Woden Valley Hospital, and the admission notes describe his injuries as swelling of the right elbow, painful right wrist and abrasions of the right leg. Subsequent investigations showed that there were fractures of the right and left elbows, which required an open reduction and internal fixation of the right elbow, while the left elbow fracture was treated conservatively at first. He was discharged from hospital on 11 February 1994.

39. He has not engaged in remunerative employment since the accident, and has returned to live with his family on the south coast. He did some work placements under social security arrangements in gardening type duties, but complained of elbow pain. In recent years he has been undertaking voluntary work with a community group in Ulladulla doing office type work.

40. In June 1994 he underwent an arthroscopy of the left elbow at the hands of Dr D McNicol which involved excision of the left radial head. He has continued over the years to complain of elbow pain in both arms. Dr McNicol in May 1996 opined that the plaintiff had a 25-30 per cent disability in his dominant right arm, and a 20 per cent disability in his left arm. In an updated report of 2 March 2005 he expressed the view that the plaintiff still had significant restriction of movement and strength in the elbows, and said -

I do not believe your client is now able to work as a builder's labourer, or will be able to do so in the future. It is possible that he could work in some light employment such as a shop assistant, where he is not doing heavy lifting or repetitive upper limb work.

41. He expressed the view that he may come to additional surgery.

42. An earlier report by Dr JS Quain expressed different percentages, with the left more disabled than the right, and considered that the plaintiff was not fit to work as a builder's labourer, but could perform lighter forms of work which would be within his capability on a full-time basis.

43. Dr Roberts has been his treating orthopaedic surgeon in more recent years, and has recommended further surgical treatment to both arms as being likely in the future in his most recent report of March 2005. In this report Dr Roberts expresses the view that the plaintiff is "quite disabled". Dr Quain in his most recent report of 18 February 2005 said that his ongoing arm pain amounted to "approximately a 7% loss of whole body in partial disability", and said that he remains -

permanently unfit for any work as a builders labourer or any manual occupation. With his new computer skills and managerial experience, as he strikes me as being a fairly intelligent man, I would hope that he would be able to gain some employment in some managerial or clerical type capacity.

44. In recent years the plaintiff has been reviewed by Dr Billett, consultant orthopaedic surgeon. In his report of November 2004 Dr Billett concludes that the plaintiff has ongoing difficulties in both arms. Dr Billet opines that he probably sustained soft tissue injures to the neck, but he expresses the view that these would now have settled, and any ongoing lumbar or cervical pain would be related to underlying degenerative changes. He recommended some further investigations and procedures to the arms and wrist, along similar lines to Dr Roberts and concluded that the plaintiff will, on return to work -

require restrictions. In relation to both arms he should limit weight (particularly on the right) and he should avoid or limit forceful gripping actions, repetitive actions and vibratory actions.

This was a report to the defendants, but was tendered in the plaintiff's case.

45. Dr Griffith, consultant surgeon, reviewed the plaintiff for medico-legal purposes in August 2004. He concluded that the injury caused:

1. Comminuted closed non-compound fracture of the right radial head (now internally fixed).

2. Fracture of the radial portion of the left radial head (now excised).

3. Contusive injury left knee - resolved without apparent long term sequelae.

4. Multiple contusions and abrasions of soft tissues of upper limbs and of the left lower limb - now resolved.

5. Severe contusive injury/sprain of the left wrist - recovered.

6. Contusive injury/sprain right wrist - recovered.

7. Severe abrasions both hands - recovered.

8. Post-traumatic acute musculoligamentous sprain cervical, cervicodorsal musculature and soft tissues- resolved

9. Musculoligamentous sprain lumbar soft tissues - resolved.

10. Minor closed head injury with transient loss of consciousness - resolved, apparently without long term cognitive dysfunction.

46. Dr Griffith said that the ongoing consequences were restrictions of both elbows and a chronic adjustment disorder with some elements of depression and anxiety. In relation to work capacity, Dr Griffith said -

The claimant is fit for intellectual activities. He is not fit to undertake the strenuous activities related to the building trade which he formerly undertook, nor is it likely that he will become so. His current situation should be considered an end point in regard to his physical abilities. One would anticipate marked improvement in his psychological state.

47. A number of medical reports have been filed in the defendants' case, and these are in broad agreement that the plaintiff sustained injuries of significance to his elbows. Dr P Slezak in September 1997 opined that the plaintiff -

has continued to experience pain and limitation of movement at the left elbow joint with less pronounced restriction at the right elbow joint. As a result of his injuries, Mr Lafrenais is unable to return to work duties which necessitate any heavy lifting nor which would entail any repetitive movement and/or agility at the respective elbow joint. Mr Lafrenais is able to perform a wide range of sedentary work duties and is certainly fit to continue on with his present light work duties as a Groundsman.

He maintained this view in an update report of October 2004.

48. Dr SN Khan, consultant surgeon, opined in October 1997 that -

He has been left with a degree of disability in both his arms as a consequence of fractures of the radial heads on both sides. The soft tissue injuries to his neck, right knee and both wrists have resolved with no ongoing disability or impairment in these regions.

He is unfit for normal duties as a labourer but is fit for selected duties which do not involve heavy lifting with both his hands of more than 10 kg. He is fit for working as a groundsman and fit for light labouring work. He would also be fit for working as a delivery man or truck driver.

Dr Khan generally confirmed these views in an update of October 2004, but did note that -

There has been some further restriction of mobility in the left elbow as compared to the previous examination.

49. A report by a Dr Smith of March 2002 expresses scepticism as to whether the plaintiff has any ongoing disabilities, but this seems out of step with all other reports, and I disregard his report.

50. On all the evidence I accept that the plaintiff sustained quite significant injuries in this fall. I accept that these were fully disabling for a period, but that his ongoing disabilities now relate to restrictions and pain from his elbows. I accept that the long history of this matter has lead to the related anxiety and depression diagnosed by Dr Griffith and I also accept his view that these should resolve with the resolution of the present litigation.

51. In relation to general damages, it seems to me that ongoing restriction and pain in the elbows, on top of the immediate pain of the contusions and wrist pain, and the now settled soft tissue pain from the neck and back, should sound in an award of general damages in the sum of $85,000, with $40,000 attributable to the past, generating interest of $9,440, for a total award of general damages of $94,440.

52. Past out-of-pocket expenses were agreed in the sum of $6,684.20.

53. I accept that there is a real likelihood of future surgical intervention to both elbows, and it is accordingly appropriate to make an allowance for this, as well as future medications, although the past use of medications has been limited. It seems to me that an appropriate allowance for both of these factors would be $12,000.

54. The plaintiff has particularised and made submissions in support of an economic loss claim based on an ongoing permanent loss of economic capacity based on average construction industry wages from the date of the accident to the date of hearing, in the amount of $338,652 for the past, and $442,685 for the future. It seems to me that the medical evidence in this case falls well short of such a claim, as there are simply no doctors who report in the plaintiff's case on the basis of total disability. It is the consistent view of doctors that the plaintiff is disabled for heavy building labouring work, but could work on a full-time basis on a range of other duties.

55. Mr Stretton effectively made submissions for all defendants on the question of damages. He made the submission that, although the plaintiff gave a history of long-term employment as a builder's labourer, his tax returns for the years prior to the accident indicate that he was in receipt of significant Centrelink benefits during 1992 and 1993. While this is true, I note that it was the plaintiff's evidence that in 1993 he left the south coast, where he had lived and worked for many years, to come to Canberra to find work, and it seems to me that he had demonstrated a real ability to earn construction industry type wages before the accident. I am not prepared to assess him on the basis that, but for the accident, he would have in any event spent significant periods out of employment.

56. The fact remains, however, that he has been assessed by all doctors as being able to undertake a range of tasks, including delivery driving, which he had been doing for a south coast bakery some years before the accident. Despite the regular medical reports indicating an ability to do a range of jobs, the plaintiff has not sought employment since the accident, save for a period when he was doing groundsman work, apparently as part of a supervised return to work through Centrelink. He gave evidence that he left this work when he experienced elbow pain.

57. The purpose of an award of damages for loss of earning capacity is to compensate a plaintiff for the accident related loss of income. It seems to me that the evidence here indicates that the plaintiff has lost the ability to work as a builder's labourer, but he has consistently been advised by doctors that he could engage in a range of other jobs. He has done nothing, it seems to me, to look for or obtain such work, although he has engaged in community work which involves, on his evidence, ordinary office type duties. He could, it seems to me, find work in a range of sedentary duties, clerical, sales or delivery work on the south coast. In reaching this view I have taken into account all of the medical evidence referred to above, as well as the occupational assessments tendered in the defendants' case by physiotherapist Mr Verhagen.

58. There is no doubt that the plaintiff was fully incapacitated for a period following the accident, at least, it would seem to me, until after the further procedure on his elbow in June of 1994. From the latter part of 1994, however, it seems to me that the medical evidence, and the evidence of the plaintiff in relation to what he was able to do, would not support the full-time incapacity claim.

59. On the other hand, I must be mindful of the evidence that the plaintiff has had limited education, and has worked in manual labour all his life, with the exception of the time he did work as a driver for a bakery. Moreover, because in the circumstances of this case there was a vehement denial by all potential employers that he was an employee, he has not had the benefit of the intensive rehabilitation efforts that would normally accompany an industrial accident covered by worker's compensation insurance. While I do not resile from the finding that he has not sought work, neither has anyone assisted him in obtaining suitable employment in the past.

60. The plaintiff has been working regularly in a community centre in Ulladulla and also serves on the management committee of that body. He accepted that he would enjoy, and would be suited to, some similar remunerative work. I accept Dr Griffiths' view that, to the extent that he has experienced a degree of anxiety and depression partly as a consequence of the protracted nature of these proceedings, this should resolve upon the conclusion of the proceedings. It seems to me that, while I can be confident that the plaintiff will be able to obtain adequate remunerative work for the future, so that the buffer for the future should only reflect the inability to return to manual work, for the past I must assess him on the basis that, while originally fully incapacitated for up to one year, he has since then had a degree of residual earning capacity that should have allowed him to engage in a range of work in accordance with the consistent advice of his doctors.

61. This is clearly a case that requires a global approach to economic loss. Nevertheless, some comparison with an ongoing weekly loss can provide a useful guide to reaching a proper figure. The plaintiff has not worked for over ten years, and it is the uniform view of all the doctors that his accident related injuries prevent him from working in his former field as a manual labourer. A global buffer for past economic loss, inclusive of superannuation, of $120,000, would be equivalent to a loss of about $200 per week which, it seems to me, is appropriate in all the circumstances. It would be appropriate to make an allowance for interest for this past loss, bringing the sum awarded up to $150,000. This approach to interest is lower than the normal calculation, and reflects the fact that the plaintiff has made limited efforts to utilise his residual economic capacity.

62. For the future, I expect that the resolution of his anxiety and depression and a degree of retraining, will allow him to resume work and to achieve earnings that are comparable or superior to those of a manual construction labourer. Nevertheless he will forever have limitations on lifting and repetitive work and will be restricted in the range of work he can undertake. An award of $72,000 would equate to a loss of about $100 a week on an ongoing basis to normal retirement age, inclusive of superannuation, and would, it seems to me, be an appropriate buffer on all of the evidence of this case. I note that there was no evidence that the plaintiff was in fact being paid any separate superannuation payments while engaged in building industry work.

63. This amounts to an award of damages of $335,131 calculated as follows -

General damages $ 85,000.00

Interest on general damages $ 9,447.00

Past out-of-pocket expenses $ 6,684.00

Future out-of-pocket expenses $ 12,000.00

Past economic loss $150,000.00

Future economic loss $ 72,000.00

Total: $335,131.00

Contributory negligence

64. It was argued that, as the plaintiff assisted Mr Heaton-Harris in the erection of the dangerous scaffolding and, on his evidence, advised Landmarques of the danger, he was fully aware of the danger, and so was himself negligent in continuing to work on the site. It seems to me that this is quite an unrealistic submission, and contrary to long authority which accepts that the duty on an employer to provide a safe work site is a stringent one, and that momentary inadvertence by an employee does not amount to contributory negligence (Bankstown Foundry Pty Ltd v Braistina [1986] HCA 20; (1986) 160 CLR 301, Podrebersek v Australian Iron and Steel [1985] HCA 34; (1985) 59 ALR 529). Counsel for the Heaton-Harris interest, in arguing against a finding of liability, made the submission that Mr Heaton-Harris, as a mere contractor to Landmarques or the Club, would not have been in an economic position to say, "we have run out of safety fencing, the scaffolding is dangerous, no workers should use the scaffolding until it is made safe". I do not accept that proposition, but it does seem to me that this is a good answer to a claim of contributory negligence by the plaintiff. As a mere labourer, engaged on a casual basis, what could he have done if he wanted to keep a job, but to do as he was told. I make no finding of contributory negligence.

Findings of the Court

65. I have found that the plaintiff was an employee of Mr Heaton-Harris, and that Mr Heaton-Harris was in breach of his duty of care to his employee. It follows that there should be judgment in the plaintiff's favour against the first defendant. The second defendant is the insurer for the first defendant if the first defendant is found to be the employer of the plaintiff.

66. I have also found that both Landmarques and the Croatia Deakin Soccer Club were in breach of a duty imposed upon them by the common law as occupiers of a site where the public, including building workers, were expected to come, and also in breach of a statutory duty pursuant to the scaffolding regulations. I find them to have been equally culpable in their failure to ensure site safety. There should accordingly be judgment against both the third and fourth defendants.

67. It seems to me that the first, third and fourth defendants are properly regarded as being jointly and severally liable. The plaintiff can enter judgment against all or any of them as he sees fit. As I have found each of the first, third and fourth defendants equally responsible, the various contribution notices should reflect this.

68. I do not find that either the third or fourth defendant was an employer, either at common law or as a deemed employer for the purposes of the worker's compensation legislation of the plaintiff. It follows that there should be judgment in favour of the fifth defendant, who only insures the fourth defendant as an employer.

69. It seems to me that it would be appropriate to give leave to the parties to bring in short minutes to reflect the Court's findings, and for me to also hear the parties as to costs.

I certify that the preceding sixty-nine (69) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Connolly.

Associate:

Date: 29 March 2006

Counsel for the plaintiff: Mr M Maxwell

Solicitor for the plaintiff: Ryans Barristers and Solicitors

Counsel for the first defendant: -

Solicitor for the first defendant: Minter Ellison

Counsel for the second defendant: Mr G Stretton

Solicitor for the second defendant: CC Law

Counsel for the third defendant: -

Solicitor for the third defendant:

Counsel for the fourth defendant: Mr FJ Purnell SC

Solicitor for the fourth defendant: CC Law

Counsel for the fifth defendant: Mr D Feller SC

Solicitor for the fifth defendant: Minter Ellison

Dates of hearing: 14, 15 16 March 2005, 19 and 20 September 2005

Date of judgment: 29 March 2006