Multiplex Constructions (NSW) P/L v Lopez & 1 Ors [2004] NSWCA 319 (13 September 2004)

Last Updated: 20 September 2004

NEW SOUTH WALES COURT OF APPEAL

CITATION: Multiplex Constructions (NSW) P/L v Lopez & 1 Ors [2004] NSWCA 319

FILE NUMBER(S):

40462/03

HEARING DATE(S): 25 June 2004

JUDGMENT DATE: 13/09/2004

PARTIES:

MULTIPLEX CONSTRUCTIONS (NSW) PTY (Appellant)

Camilo LOPEZ (First Respondent)

PICT BRICKLAYERS PTY LIMITED (Second Respondent)

JUDGMENT OF: Handley JA Beazley JA Santow JA

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 2103/01

LOWER COURT JUDICIAL OFFICER: McLoughlin DCJ

COUNSEL:

M L WILLIAMS, SC/ R S SHELDON (Appellant)

M I BOZIC, SC/ D SHOEBRIDGE (First Respondent)

C R R HOEBEN, SC/ C BUTLER (Second Respondent)

SOLICITORS:

Phillips Fox (Appellant)

Taylor & Scott (First Respondent)

P W Turk & Associates (Second Respondent)

CATCHWORDS:

LIABILITY - injuries suffered when employee slipped on water and mud on worksite en route to where he was to perform his duties as a bricklayer - whether duty of care owed by appellant/ head contractor to first respondent/ employee of negligent sub-contractor for injuries suffered by that employee - extent and nature of duty of care - if breach occurred was it causative of employee's injury - underlying medical condition - Whether breach of regulation 73 of Construction Safety Act 1912. DAMAGES - appeal against damages awarded, both general and, past and future economic loss.

LEGISLATION CITED:

Construction Safety Act 1912

Construction Safety Regulations 73(2)

DECISION:

(1) The appeal is dismissed

(2) The appellant to pay the costs of this appeal.

JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40462/03

DC 2103/01

HANDLEY JA

BEAZLEY JA

SANTOW JA

13 SEPTEMBER 2004

MULTIPLEX CONSTRUCTIONS (NSW) PTY LIMITED v Camilo LOPEZ & 1 Ors

Judgment

1 HANDLEY JA: I have had the benefit of reading the draft judgment of Santow JA in this appeal. With one exception I agree with his Honour's reasons. His Honour is inclined to the view that the appellant was in breach of the statutory duty under reg 73(2) of the Construction Safety Regulations but in my judgment no such duty was imposed on it in the circumstances of this case.

2 In my respectful view the majority decision in H C Buckman and Son Pty Ltd v Flanagan [1974] HCA 30; (1974) 133 CLR 422 (Buckman) establishes that at the relevant time Multiplex was not under an obligation imposed by this regulation.

3 Multiplex was the head contractor on the site and Pict Bricklayers Pty Ltd (Pict) was the bricklaying sub-contractor. At about 10 am on the day in question Mr Boss, the site manager for Multiplex, told Mr O'Sullivan, Pict's foreman, that it was in order for Pict's employees to enter the partly constructed building to de-water it with a view to resuming building work in the basement. Multiplex and its employees were not otherwise involved in the de-watering of the basement.

4 In Buckman the majority (Barwick CJ, McTiernan and Stephen JJ) held that in the circumstances of that case these regulations did not generally impose duties on the head contractor or the sub-contractor. The duties were imposed on Mr Flanagan the sub-sub-contractor responsible for the erection of the structural steel. However a particular duty was imposed on the head contractor by reg 73(17) because one of its employees had carried out building work by cutting the bolts on the guyed stanchion which moved when Mr Flanagan later climbed up a ladder resting against it and fell.

5 Barwick CJ approved (at 428) the majority decision in Davey v Skinner (1960) 61 SR(NSW) 648 that:

"The obligation rests on the active person, that is the one who carries out the work in actual fact."

6 He continued (at 428-9):

"Building work is so defined that it does not necessarily refer to the total work to be performed in the building, but the definition is suitably worded to enable each section of the work being done ... being regarded as building work so that the obligation to take the specific safety measures [is] imposed on the person who is carrying on or carrying out that particular work. It is not consistent, in my opinion, with that conclusion to include independent contractors who are carrying out particular building work as `agents' of the building owner or contractor so as to impose on him the obligation which clearly will fall on the independent contractors vis-à-vis the building work they are actually doing."

7 He therefore held that the duties in regs 73(1), (2), (3) and (16) were not imposed on either the head contractor or the sub-contractor, but only on the sub-sub-contractor. However in relation to the duty in reg 73(17) he said (at 429-30):

"However Buckman did undertake building work in connection with this stanchion ... By cutting the bolts which could be held to contributing to the stability of the stanchion, it could be concluded that building work was carried out by Buckman which was likely to reduce the stability of the stanchion so as to endanger some person. Consequently Buckman could be held to have come under an obligation to take some precautions to prevent danger to any person from the collapse or fall of the stanchion."

8 McTiernan J said (at 433):

"Thus the obligation to observe the precautions prescribed in pars (1), (2), (3) and (16) of reg 73 would here fall on the respondent Flanagan rather than on Shaw or Buckman, since it was he who was carrying out the relevant building work ... It cannot be said that either Buckman or Shaw was vicariously liable under the regulation as regards the work carried out by Flanagan, by considering Flanagan to be the `agent' of either appellant. Flanagan was an independent contractor, and the relationship ... therefore does not here shift to Buckman or Shaw the liability imposed on Flanagan as the person carrying out the building work, since he was not carrying out such work as agent of either appellant in the strict sense."

9 Stephen J agreed with the Chief Justice (at 434).

10 In my judgment the permission given by Mr Boss for Pict's employees to enter the building and conduct de-watering operations was not building work, and by giving that permission Multiplex did not carry out the particular work of de-watering. Accordingly it was not bound by reg 73(2), and the obligations it created were imposed on Pict alone.

11 I would therefore allow the appeal and set aside the finding that Multiplex was guilty of a breach of statutory duty under reg 73(2) but would otherwise dismiss the appeal and order the appellant to pay the respondent's costs.

12 BEAZLEY JA: I have had the advantage of reading in draft the reasons of Handley JA and Santow JA. I agree with Santow JA that the appellant breached its common law duty of care to the respondent. I also agree with Santow JA that on the facts of this case the appellant was in breach of Reg. 73(2) of the Construction Safety Act 1912. I am of the opinion that Multiplex had an active role in relation to that part of the building work involved in the dewatering process: see H.C.Buckman & Son Pty. Ltd. v. Flanagan [1974] HCA 30; (1974) 133 CLR 422 at 428. It follows that I agree the orders proposed by Santow JA.

13 SANTOW JA:

OVERVIEW

This case essentially turns on whether any duty is owed by the appellant/head contractor to the employee of a negligent sub-contractor for injuries suffered by that employee. Those injuries were suffered when that employee slipped on water and mud on the worksite en route to where he was to perform his duties as a bricklayer employed by the sub-contractor. The appellant head contractor, Multiplex Constructions (NSW) Pty Limited ("Multiplex") appeals against a decision in favour of the employee, Camilo Lopez. It held that both Multiplex and Mr Lopez's employer, the sub-contractor Pict Bricklayers Pty Limited ("Pict"), were liable for the injuries he suffered. There is no appeal from Pict.

14 The appeal is also against the damages awarded to Mr Lopez as plaintiff and now first respondent, by the trial judge McLoughlin DCJ totalling $451,851.26. The appeal against damages is directed at the following:

(a) the general damages of $90,000 which the appellant considers should be reduced to between $35,000 to $45,000 by reason of the plaintiff's/ first respondent's pre-existing condition and what is said to be the very limited extent to which his condition can be seen to have been aggravated by the incident, and

(b) past economic loss of $77,592.58 and future economic loss of $196,975, where the appellant contends that the plaintiff/ first respondent would not have worked more than one-third of the time in the future and that, had he done so, the figure for his vicissitudes should still have been 50%, or at the least 25%.

15 The foregoing challenges to the damages would, if successful, lead to consequential adjustment to the interest component on past general damages and upon the figures for superannuation loss, past and future.

16 Apart from the damages issues, it is agreed between the appellant and the second respondent, Pict, that the issues raised by the appeal are as follows:

(a) as to the extent and nature of the duty of care owed by a contractor to employees of a sub-contractor, working under the direction and supervision of staff of that sub-contractor;

(b) whether there was in the circumstances any breach by the appellant head contractor of any duty of care owed to the plaintiff/ first respondent;

(c) whether any breach, if it occurred, was causative of the plaintiff's/ first respondent's injury; and

(d) the extent of the duty on the appellant under the Construction Safety Act 1912 and in particular regulation 73; specifically whether there was a breach of that regulation and if so, whether it was causative of the plaintiff's/ first respondent's injury.

FACTUAL BACKGROUND AND PRINCIPAL FINDINGS

17 The first respondent was born on 4 August 1956 in Spain. In 1980 he suffered a motorcycle accident in which he injured his left wrist, sustaining necrosis, which crystallised at the time of the accident. Mr Lopez had migrated to Australia in February 1983 and spoke very limited English.

18 At the time of the accident on 8 March 2000 Mr Lopez was employed by Pict, a sub-contractor of Multiplex, as a bricklayer, laying large blocks of masonry. The latter was the head contractor having control and management of the building site at the King Street wharves.

19 On 8 March 2000, Mr Lopez attended the workplace but as it was raining strongly he stayed in the work-shed for Pict employees until about 10 am.

20 At about 10 am Mr O'Sullivan, Pict's foreman, spoke to Mr Boss, Multiplex's site manager. In response to Mr O'Sullivan's question about whether it was alright to go back on to the site and "dewater" "he said to me you're alright to go back in and dewater"; T, 111.14-.16. Although Mr O'Sullivan had no precise recollection of whether it was raining or not, his evidence was that if it was still raining he would not have sought approval to go onto the site to dewater. His evidence was that he could not go down and satisfy himself as Mr Lopez's supervisor as to the state of the concrete floor in the car park area where the work was to be carried out "until the safety committee had okayed it"; T, 112.23. He confirmed at that point that Mr Boss "said it was alright to go back in to dewater"; T, 112.35.

21 At that point Mr O'Sullivan understood that there was water in the areas where his workers were to work and the evidence was that it was some 3 to 4 centimetres deep, with mud in it.

22 Mr O'Sullivan gave evidence that as a small contractor it was part of his responsibility to dewater his area where they were working, the system being that "everybody dewaters their own areas"; T, 102.5-.8. In answer to the question "If there's a wet site is there some procedures that take place before the workers go on to carry on their duties?" he replied: "If and when it does stop raining, you then check with the safety committee to see if you can go back in ... that's step one ... they will give you the go-ahead to go into and dewater. You go in, dewater and then get the place re-inspected and go back to work"; T, 102.13-.19.

23 He explained that the safety committee or a member of the safety committee re-inspects the area and that after the inspection takes place a decision is made as to whether or not to go back into work.

24 Mr O'Sullivan's evidence was that he had already sent the labourers back in to do the dewatering and he asked the brickies to go in as well and give the labourers a hand with dewatering. It can be taken that the plaintiff/ first respondent was one of the brickies for that purpose.

25 Reverting then to the events that happened, Mr O'Sullivan immediately came into the shed and spoke to the workers. Although there is dispute as to exactly how specific the directions to Mr Lopez were, Mr O'Sullivan told the bricklayers that they had to go back to work and they protested. Broadly the two versions of the directions were as follows:

(a) according to Mr Lopez, Mr O'Sullivan gave a direction to go back to work and a specific direction to build a box using cement blocks, which had something to do with electricity; and

(b) according to Mr O'Sullivan he gave a general direction to go and help dewater the work site and nothing else which he could recall.

26 Mr Lopez then left the shed with two other labourers and walked down an uncovered muddy wet ramp towards the work site. The concrete area at the bottom of the ramp was submerged in about 3 to 4 centimetres of muddy water.

27 Mr Lopez surveyed the area for a short period, and then without incident went the 200 metres to get his tools from where they were kept on that floor. He then returned the way he had come, carrying his toolbox in his right hand and the spirit-level in his left hand.

28 As he approached the place where he was going out to work, Mr Lopez "slipped on the floor" with his right foot and fell to his left against an adjacent column, hitting his head, before falling to the ground and striking his wrist on an iron bar that was on the floor.

29 Mr O'Sullivan arrived a short time later and told Mr Lopez to go to the first aid shed. The GP report of that day recorded that his injuries included a grazed right knee, tender and painful left wrist and soft tissue injury.

30 On 22 March 2000 Mr Lopez' Employees Compensation Form was filled out though it appears not by Mr Lopez but someone assisting him. The relevant section of the claim form states, "it was a rainy day I went to dewater the floor I slipped on the wet surface landing on my right knee and hold [sic] my weight on my left hand. No witnesses at that moment but I repeated to the first aid and union delo [delegate]".

31 Mr Lopez did not return to work, having had a series of medical certificates issued, in respect of his chronic wrist pain, this continuing until his termination on 3 October 2000. Since then he has on many occasions sought work as a driver or at a number of schools.

32 The medical assessment was that the injury had aggravated a pre-existing condition in his left wrist joint and that the injury was a substantial contributing factor to his inability to work in anything other than "light to moderate duties".

33 Mr Lopez sued both Multiplex and Pict, alleging he sustained injuries in the course of his employment at the site.

34 Pict also filed a cross-claim against Multiplex claiming an indemnity or contribution in respect of any verdict for Mr Lopez whilst Multiplex filed two cross-claims Pict claiming an indemnity or contribution in respect of any verdict for Lopez. The cross-claims were not dealt with by the trial judge.

35 The special conditions to the contract provided in clause 1.07 as follows:

".07 DEWATERING OF WORK AREAS

Immediately following a period of wet weather the Sub-contractor shall remove all casual water remaining from its work areas and access ways with all Labour and Equipment necessary to enable work to continue with the minimum delay to progress of the Principal Works. If the Sub-contractor is sharing work areas with other sub-contractors, then it shall work with the other sub-contractors in those areas to remove all casual water remaining.

The special conditions themselves referred to a `safety method statement' (Clause 2.02 of the special conditions) and the contract more generally provides for certain equipment by way of contractor's plant to be provided on the site; clause 1.05." [emphasis added]

36 Evidence was given that the method of dewatering was a combination of brooms and squeegees. The trial judge asked Mr O'Sullivan "If there was mud on the areas of concrete what would normally be done to remove the mud, just brooms?" Mr O'Sullivan responded that "Multiplex probably would have a bobcat or something scraping it away, depending on how much mud was there or - we couldn't work in an area that was covered in thick mud ..."; T, 114.55-115.4.

37 In answer to a question whether there were any vacuum pumps to remove water, Pict, through Mr O'Sullivan, responded that Pict had none but that "Multiplex had wet and dry vacuum cleaners"; T, 115.23-5.

38 There was, as I have earlier mentioned, a safety committee called the Multiplex safety committee. Pict was not represented on it, being a relatively small contractor on the site. On the safety committee there were "site managers, union representatives and sub-contractor representatives" in respect of the different trades (T, 98.25-.30). Multiplex was represented on the safety committee as head contractor.

39 In addition to the contract, there was in existence a wharves 9 & 10 "Wet Weather Provisions" document, published by the Multiplex Safety Committee, being exhibit X (Blue, 2/225). It is of sufficient importance to be quoted in full below:

"WHARVES 9 & 10

WET WEATHER PROCEDURE

Due to some discussions with Safety Committee and Multiplex Management regarding wet weather and what happens after heavy rain is [sic] to get the site safely and efficiently to return to productive work.

After heavy rain and the site is deemed to be wet, this is to be agreed with Multiplex Management and Safety Committee.

All supervisors, Multiplex and subcontractors are to take a proactive position and inspect their areas.

Organise crews to go out and dewater these areas, the crew consist of the appropriate trades, they must assist in dewatering their own areas.

When the supervisors would like these areas inspected, they call the safety committee chairperson and he will allocate part of the committee to inspect that area and declare it open or still closed till more water is cleared.

This system will not work unless the supervision is diligent in its operation and ensures that at all times brooms and squeegees are available for the crews to dewater.

The site for its duration will consist of outside trades who are affected by inclement weather and inside trades who are not normally affected by inclement water.

Each subcontractor must implement their E.B.A. Agreement.

MULTIPLEX SAFETY COMMITTEE"

40 The trial judge made a number of important findings which I set out below:

(a) Mr O'Sullivan clearly gave directions to the labourers to dewater, but gave no clear and concise instructions to Mr Lopez or the other bricklayers (Red, 26W-27B).

(b) Mr O'Sullivan did not take any steps to confirm that Mr Lopez understood what he was required to do ("dewater" according to Mr O'Sullivan) or whether he was aware of any dangerous situations that could arise in the workplace (Red, 27P-T), so failing in the duties of an employer to an employee to ensure that the above matters had been attended to (Red, 27T-V).

(c) Mr O'Sullivan did not accompany the workers back to the work site, or inspect the area or supervise the work and direct the work system (Red, 27N-V, 45N) and, I would add, there is no evidence that Mr Boss or anyone from Multiplex did either.

(d) Mr Lopez has limited English and took the general view that he was required to attend the site to work (Red, 27D) and assumed that his instructions were to attend the workplace (Red,27I).

(e) Mr Lopez was intending to work at the site at the time he fell (Red, 27F).

(f) Mr Lopez fell because of the "muddy and damp conditions of the areas he was required to traverse" and, in falling, struck his hand and knee (Red, 27J).

(g) The workplace and access areas were dangerous, and the construction site was generally dangerous (Red, 51G).

(h) Multiplex and the sub-contractors were required to take a proactive position and inspect work areas, organise crews for dewatering, with diligent supervision and appropriate equipment on hand (Red, 44N-V and Exhibit X quoted above).

(i) Multiplex was in charge of the safety committee and did nothing to prevent workers from using the dangerous areas as a means of access to work areas (Red, 46H).

(j) At the relevant time the workplace was dangerous and there was no adequate inspection or supervision provided by either Mr O'Sullivan or Mr Boss (Red, 47G).

(k) Multiplex had direction and control of Mr O'Sullivan (Pict's employee) and Mr O'Sullivan worked under the control of Mr Boss (Multiplex's site manager) (Red, 48H-K, 49E) such that Pict did not have sole control of the site (Red, 49B).

(l) Mr Lopez had an underlying condition of degenerative necrotic bone structure in relation to his left wrist; the necrosis was worsening and would at some stage have effected his capacity to work as a bricklayer (Red, 27W, 43A-C).

(m) Nevertheless Mr Lopez suffered a significant injury to his wrist in his fall and is unable to work as a bricklayer now (Red, 42X-43M, 52W) though he is fit for light duty work (Red, 53J).

(n) The accident occurred as Mr Lopez was on his way to and assessing the work site where he was going to carry out some brickwork or other duties in accordance with what he understood his employment obligations to be and as he understood the directions from Mr O'Sullivan (Red, 44J).

(o) Duty of care

(i) the above finding is relied upon, namely that the accident occurred as Mr Lopez was on his way to and assessing the work site in accordance with what he understood his employment obligations and directions to be (Red, 44J-M);

(ii) Multiplex had assumed control and supervision of the premises (particularly re care, supervision and control in wet weather) and it was its duty to ensure the premises were rendered safe, even if independent contractors failed to perform their duties (based on exhibit X) (Red, 46P-V).

(iii) Multiplex and Pict were both carrying out building work and had control in part of the area and owed a duty to provide a proper and safe means of access to the workplace, pursuant to regulation 73(2) of the Regulations under the Construction Safety Act 1912, being a continuing duty to ensure people did not access the work site in a dangerous manner (Red, 47R-T, 48O).

(p) Multiplex had a duty as head contractor under or arising out of its occupation of the premises and its control of all sub-contractors.

(q) Mr O'Sullivan of Pict failed in the duties owed by an employer to an employee to ensure the safety of the workplace and to ensure that the employee understood what he was required to do and the dangers involved (Red, 27U).

(r) Causation

(i) The accident was caused by the failure of the employer to provide a proper and safe system of work, in failure to instruct properly, supervise, inspect the workplace and access areas, co-ordinate and direct Mr Lopez's work (Red, 50K-Y).

(ii) The injury could have been avoided by proper inspection, direction and control of the workers.

(iii) Neither Multiplex nor Pict adequately supervised the work that was required or brought to the attention of the workers "the obvious inherent risks" in working in the slippery, muddy area (Red, 45S-V).

(s) Breach of Duty

(i) Pict breached its duty by requiring the plaintiff/ first respondent, without proper instruction or supervision, to attend the workplace in order to gain access to it without there being any adequate inspection (Red, 50K-51M, 52C-G).

(ii) Multiplex was also negligent in "failing to ensure the workplace and means of access were rendered safe and a proper and safe means implemented to render that area, under their care and control, and that persons directed did in fact carry it out safely" (Red, 51O).

(iii) Pict and Multiplex both were in breach of Regulation 73(2) (Red, 51S).

(iv) Both Multiplex and Pict should have provided vacuum pumps, in circumstances where the system of just using brooms and shovels was inadequate even for cleaning purposes, so that with proper instruction and direction the level of water would have been removed by the workers working safely (Red, 45W-46G).

(t) There was no contributory negligence by Mr Lopez (Red, 51V).

(u) Damages

(i) Future economic loss was assessed over 20 years discounted by 50% for vicissitudes, the percentage for vicissitudes being thus increased because of regular absence from work to look after his sick wife, though the evidence was that his children were now at an adult stage so that that would cease to be as necessary.

(ii) Mr Lopez had a residual earning capacity of $170 per week.

(iii) So far as past economic loss was concerned this should be assessed at 30% covering his absence from work giving rise to a past wage loss after allowing for deductions and deducting $840 earned, in the sum of $77,592.58 (Red, 54F).

APPEAL GROUNDS

41 The Notice of Appeal is extensive with some 41 grounds, many repetitive, which can be summarised as follows:

(1) Failure to take into account the terms of the contract between Multiplex and Pict in determining the nature and content of the duty of care owed by Multiplex to Mr Lopez.

(2) Error in finding Multiplex liable in breach of the Regulations under the Construction Safety Act.

(3) Failure to find that Pict was solely responsible for dewatering the accident site, and that Multiplex had no duty to supervise dewatering ;

(4) Failure to find that Multiplex owed and fulfilled a duty of reasonable care rather than a duty to ensure that care was taken;

(5) Error in finding that there was a duty to warn Pict of the presence of water and mud (when none was pleaded) and in finding a duty to determine whether dangerous conditions prevailed and what measures for safety should have been adopted.

(6) Error in finding that Multiplex should have involved itself in the arrangements between Pict and Mr Lopez concerning the task of dewatering, etc.

(7) Error in failing to find contributory negligence;

(8) Errors in assessing damages for economic loss without reference to intermittent work history and in only deducting 50% for vicissitudes.

DISPOSITION OF APPEAL

42 After hearing argument on the appeal, the presiding judge, Handley JA with the concurrence of Beazley JA and myself stated the duty of Multiplex as head contractor in these terms:

"Multiplex's head contractor owed:

(i) a duty of care to persons such as Mr Lopez who are on site as employees of Pict, the sub-contractor, and

(ii) was in breach of that duty because it authorised the commencement of work by Mr Lopez and other employees of Pict without taking reasonable steps to ensure that the site was safe."

43 This statement derives from the principles laid down by the High Court in Stevens v Brodribb Sawmilling Co Limited [1986] HCA 1; (1985) 160 CLR 16. In particular it is based upon the fact that Multiplex, as head contractor, was necessarily involved in the co-ordination of activities in what was undoubtedly a large scale and complex construction site involving a number of different trades.

44 That conclusion is not precluded from application in the present case merely because of the clauses in the contract between Multiplex and Pict that I have earlier quoted. I refer in particular to the provision whereby responsibility for removal of "casual water" remaining from work areas and access ways was placed upon the sub-contractor; special condition 2.07. Indeed there is a question as to whether the expression "casual water" applied at all to the kind of rainfall that left 3 to 4 centimetres of water, though that matter was not argued on appeal.

45 Nor is any different result mandated by clause 19 of the contract which provides that

"The sub-contractor shall be responsible for co-ordinating the execution and the location of the Works and working with all other Sub-contractors and adequate protection of its equipment, materials, Works and adjoining or affected works for the extended duration of the Principal Works, and shall allow for all time and cost associated with the requirements of this clause."

46 Such a co-ordination obligation is simply directed to the sub-contractor co-ordinating the execution and location of its own works, here the brickworks. Beyond requiring co-operative working with other sub-contractors, it has no bearing upon the principal contractors' overriding obligations with respect to the site, derived from the necessary co-ordinating role that the head contractor, Multiplex, was required to exercise.

47 Nor is there any inconsistency between the clauses to which I have made reference above and the wet weather procedure in Exhibit X which I have earlier quoted. Let it be assumed in favour of the appellant that the obligation upon the Sub-contractor to remove all "casual water" applies even to a downpour leaving 3 to 4 centimetres of water on the building site. Nonetheless it is clear on the evidence that the method by which this operation of dewatering was carried out necessarily involved a wet weather procedure designed to promote safety, taking into account the duty of care of a head contractor for the co-ordinating responsibilities that were here involved in this site, to which I have earlier made reference.

48 I agree with the submission of the first respondent that Exhibit X makes the following clear:

"(a) the procedure set out in the document is the procedure to get the site "safely and efficiently" into a position where work can resume (Blue, AB225H);

(b) there is an obligation placed on:

(i) supervisors;

(ii) Multiplex; and

(iii) sub-contractors;

to do the following:

(iv) to take a proactive position; and

(v) to inspect their areas;

(c) there is a clear warning given to those at whom the document is directed, namely, supervisors, Multiplex and sub-contractors, that:

"The system will not work unless the supervision is diligent in its operation." (Blue, AB225P-Q)"

49 The trial judge dealt with Exhibit X at Red, AB46K-V:

"Mr Ingram, learned counsel for the plaintiff, also urges upon me that in this case the second defendant has undertaken the care, supervision and control of the wet and slippery workplace and was assuming a particular responsibility for it, and that such a finding was well open because of the document being Exhibit X; in effect that Multiplex had the duty to ensure that the access sites and work stations were made safe and that if the independent contractors failed to perform their duties, Multiplex was still liable, and that in these circumstances Multiplex had assumed the control and supervision of the premises, and it was their duty again to ensure that the premises were rendered safe. This would appear to be so when one looks at Exhibit X and I so find."

50 The statement of the duty imposed upon Multiplex does, with respect, lack the necessary qualification that the steps required of Multiplex are not the absolute obligation implied by the word "ensure" but an obligation which requires of Multiplex that which is reasonable. However, even with that necessary qualification, what the head contractor did in the circumstances was well short of reasonable.

51 In particular, the inference must be drawn that Multiplex did not, through Mr Boss or anyone else, inspect the premises before approving the dewatering so did not inform itself that the water was 3 to 4 centimetres deep and contained mud which could conceal submerged objects such as that upon which Mr Lopez was later to strike his wrist. Commonsense indicates the need for equipment such as a vacuum pump and bobcat for the mud where there is such a deluge.

52 Indeed when the duty is articulated as it is by Mason P in TNT Australia Pty Limited v Christie [2003] NSWCA 47 at [42] one could hardly find a clearer case for application of the principles there stated:

"Employment is not the only circumstance that can generate a stringent duty of care in relation to a safe system of work. In Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1; (1986) 160 CLR 16, the sawmilling company that coordinated logging operations using, in the main, independent contractors was found to have owed a general common law duty of care to a trucker who was one of those contractors, although it was absolved of breach of that duty. In a passage with which the whole Court agreed, Mason J said (at 31):

`The interdependence of the activities carried out in the forest, the need for co-ordination by Brodribb of those activities and the distinct risk of personal injury to those engaged in the operations, called for the prescription and provision of a safe system by Brodribb. Omission to prescribe and provide such a system would expose the workers to an obvious risk of injury. Although the obligation to provide a safe system of work has been regarded as one attaching to an employer, there is no reason why it should be so confined. If an entrepreneur engages independent contractors to do work which might as readily be done by employees in circumstances where there is a risk to them of injury arising from the nature of the work and where there is a need for him to give directions as to when and where the work is to be done and to co-ordinate the various activities, he has an obligation to prescribe a safe system of work. The fact that they are not employees, or that he does not retain a right to control them in the manner in which they carry out their work, should not affect the existence of an obligation to prescribe a safe system. Brodribb's ability to prescribe such a system was not affected by its inability to direct the contractors as to how they should operate their machines.' "

53 Multiplex failed to ascertain the condition of the site. It assumed and came under a duty of the general nature evidenced by exhibit X, namely to inspect the site to determine that it was safely and properly dewatered, doing so "to get the site [or more accurately those working on it] safely and efficiently to return to work" (Exhibit X). In that context, as was common ground, it matters not whether Mr Lopez thought he was proceeding to his work site to carry out bricklaying, or whether, as Mr O'Sullivan would have it, he was proceeding to dewater. In either case, his path to the place where the dewatering was to occur contained the very danger that reasonable steps would have revealed. This was not done and the men going into the site were not given the equipment needed to carry out the dewatering. This was only available from Multiplex which could have provided a bobcat and a vacuum pump when the brooms and squeegees referred to in Exhibit X were clearly inadequate for the task.

54 There was no direct evidence on whether the use of such equipment would have avoided an accident of the kind that occurred. But the trial judge was entitled to use his commonsense and infer that this would have been a safer system of work. There is no basis for disturbing his findings.

Conclusion

55 I conclude that the duty of care imposed upon Multiplex as head contractor was breached by its failure to take reasonable steps to ensure that the site was safe for the resumption of work.

Construction Safety Act 1912 - Construction Safety Regulations 1950, Regulation 73

56 I do not, in light of my earlier conclusion, need to reach a final conclusion as to whether Regulation 73 would apply to Multiplex. For the reasons which follow I incline to the view that it did apply.

57 Regulation 73(2) provides:

"Any person who directly or by his servants or agents carries out any construction 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 construction work ...(2) the provision and maintenance of safe means of access to every place at which any person has to work at any time." [emphasis added]

58 This requires, in the words of Barwick CJ in H C Buckman & Son Pty Limited v Flanagan & Anor [1974] HCA 30; (1974) 133 CLR 422 at 427 that Multiplex, must be "the person actually carrying out the particular building work, that is to say, doing it himself personally, or by his servants or by those whose acts are in law his acts". The Chief Justice found (at 424) that the head contractor was carrying out one aspect of the construction work, and in that aspect was in breach of reg 73. One of its employees had cut off and removed the bolt heads in a concrete footing in order to re-site a steel stanchion. This led to the collapse of the stanchion when Flanagan leaned his ladder against it, injuring him in breach of reg 73.

59 Multiplex, in its role on the Safety Committee was (a) required (with others) "to take a proactive position and inspect [the relevant] areas", and (b) as chair of the Safety Committee when called by the supervisors was to "allocate part of the committee to inspect [the relevant] area and declare it open or still closed till more water is cleared".

60 That involvement in dewatering, while not a physical task like bricklaying which others did, is so intimately involved with the construction activity as, to my mind, constitute part of it. That is quite apart from Multiplex' overall co-ordinating role on the site. I would therefore incline to the view that in supervising that dewatering function it was actually carrying out construction work. Nor does it affect the application of Regulation 73(2) that there be two entities thereby rendered responsible for compliance with Regulation 73(2), namely head contractor and sub-contractor, where each carry out the work in accordance with their respective roles; just as it did not alter the result in Buckman.

61 On that basis, Regulation 73(2) would apply in the present circumstances, without considering further whether, adopting the words of Mason J in Buckman, Regulation 73 would be satisfied by someone carrying out the work "by act or approval"; at 444.

Conclusion

62 Though not strictly necessary to decide, I incline to the view that Regulation 73(2) was breached by Multiplex in failing to provide a safe means of access to the site.

DAMAGES

63 It is convenient to start with the figure of $90,000 awarded for general damages; Red, 58F. I agree with the first respondent's submission that the trial judge had the benefit of seeing the plaintiff give evidence and explain the effect of the injury and its consequences upon his life. The trial judge set out in detail in the judgment (Red, 27-43) the medical evidence. While the figure awarded is clearly on the generous side, the appellant's submission (written submissions para 71) that the injury was a relatively minor one, ignores or discounts the evidence of the clinical psychologist, Mr Anthony (Blue, 31-3). This was to the effect that the first respondent suffered from an adjustment disorder with mixed anxiety and depressive mood, due to persistent pain and physical restrictions resulting from his wrist injury. The trial judge concluded at Red, 43E-N as follows:

"I accept that he is unable to do that work now and I accept that the psychological problems that Mr Anthony refers continue and cause the plaintiff to react more adversely to his injury than one would normally have expected. I accept that there is anxiety and depression and I accept that he overreacts to his injury and demonstrates greater incapacity than that which the doctors can find; I am of the view that this is not feigning on his part, but a psychological reaction to the superimposition of psychological factors as referred to by Dr Anthony on his traumatic orthopaedic injury and its sequelae."

64 Accordingly, I would conclude that the trial judge's award of general damages was, though on the high side, not outside an appropriate range and should not be disturbed on appeal.

65 I turn now to economic loss, and deal in particular with future economic loss.

66 Here the trial judge's conclusion was that "the plaintiff did suffer a significant injury to his wrist in the fall, although that was superimposed upon a degenerative, necrotic bone structure within his left wrist. ... the necrosis was worsening and would have at some stage significantly affected his capacity to work as a bricklayer."; Red, 42-3.

67 The trial judge accepted that the end result was that the plaintiff was fit for some work, limited as it may be, drawing upon the fact that he had been doing cleaning work four hours per day, several days per week. The trial judge also accepted "that it is the plaintiff's psychological reaction that has contributed to some exaggeration in relation to his evidence such as giving wrong dates of accident and exaggerations as whether Mr O'Sullivan accompanied him to the work site"; Red, 43.

68 In assessing the plaintiff's damages the trial judge found a major difficulty in relation to the economic loss because of the number of times the plaintiff had not worked in the past, looking after his wife, who suffered from a psychological depression. That difficulty was exacerbated by the fact that "his income tax returns were far from accurate, again reflecting a pre-accident predisposition towards some degree of lack of honesty on matters financial"; Red, 52. However, the trial judge concluded that "there is no doubting that at the time of the accident the plaintiff was earning $679.07 per week net with the first defendant [appellant]"; Red, 52.

69 The trial judge identified the impediments to the plaintiff continuing to work until age 65 as follows:

"(a) his pre-existing condition in the left wrist which ... had only caused him minimal inconvenience up until the time of this accident.

(b) the competing views of Dr Weisz, Dr Honner and other orthopaedic opinion as to when the plaintiff could have worked until.

(c) the difficulties that the plaintiff had in relation to having time off or ceased jobs and not returned to other jobs because of his wife's psychological problems.

(d) that his children were of much older age and were completing their university degrees and therefore able to assist further in spending time with their mother, freeing the plaintiff to carry out work duties."; Red 52-3.

70 The trial judge did not accept Dr Honner's view that there would have been an onset of pain three years post the accident date that would have taken the plaintiff out of the workforce, forming this view because the plaintiff had little difficulty notwithstanding "a radiologically degenerate wrist for thirty years prior to the accident"; Red, 53. The trial judge accepted however "that the simple trauma to the wrist could well have brought on that which this fall did and there must be a significant increase in the vicissitudes that one would normally allow because of such susceptibility"; Red, 53.

71 The trial judge also concluded that "the plaintiff is also fit for some degree of light duty employment, although may have some difficulty in being able to access it".

72 The end result was that he concluded that comparing the plaintiff's income at the time of accident of $679.07 per week to his future earning capacity of $170 net per week representing his residual capacity in some sort of employment, that produced a future economic loss based upon the sum of $500 per week attributed to a working life of 20 years, with vicissitudes set at the high percentage of 50%; the end result was a figure of $196,975 for future economic loss using the 5% tables (Red, 54-5).

73 The appellant attempted to put an alternative scenario which would have produced a future economic loss after taking into account a lesser 25% for vicissitudes of $88,638.75. The argument put in support of that was based upon a review of the admittedly unreliable income tax returns from 1997 to 2000, the latter being the year of the accident, and then averaging net weekly earnings over the whole year of income being in the year 2000 $321.51 (well in excess of 1997-1999).

74 The residual earning capacity of $170 per week was then on the appellant's calculation deducted from the figure $321.51 yielding a difference of $150 so as to produce a figure for future economic loss of $118,185 less 25% for vicissitudes yielding a net $88,638.75.

75 The alternative figure for future economic loss therefore emphasises the first respondent's chequered work history prior to his employment in which he suffered the accident, appears to give no particular weight to the fact that his children were of much older age and completing their university degrees such that they could spend more time with their mother so freeing the first respondent to carry out work duties, and on that basis concluding with a much lower figure, essentially based on the first respondent's work history in the year 2000.

76 One difficulty with the appellant's approach is that the trial judge attempted to deal with the uncertainty of the first respondent's future employment by deducting a very substantial percentage for vicissitudes, well above the conventional 15%, when 50% was attributed to vicissitudes. The appellant attempted to do something akin to this but sets a figure of 25% for vicissitudes. That highlights the fact that we are here dealing with an area of necessary imprecision in attempting to predict future possibilities. In my judgment, it could not be said that the trial judge's assessment of those uncertainties was outside the appropriate range, though again clearly on the generous side.

77 The other matters raised in relation to damages are consequential on the approach that I have concluded should not be adopted, as I find no basis for finding appellable error in the trial judge's approach.

Conclusion

78 The trial judge's award of damages, though on the generous side, is not outside the appropriate range so as to warrant appellate intervention.

79 Given that the appellant is thus unsuccessful on appeal, the matters raised in the first respondent's Notice of Contention do not arise.

OVERALL CONCLUSION AND ORDERS

80 I have concluded that the appellant's appeal should fail both as to liability and damages. I propose the following orders.

(1) The appeal is dismissed.

(2) The appellant to pay the costs of this appeal.

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LAST UPDATED: 14/09/2004