Dargham v Kovacevic [2011] NSWSC 2 (31 January 2011)

Last Updated: 16 June 2011

Supreme Court New South Wales

Case Title:	Dargham v Kovacevic
Medium Neutral Citation:	[2011] NSWSC 2
Hearing Date(s):	22, 23, 24, 25 February, 27, 28, 29, 30 April, 28, 31 May, 1, 3, 4 June 2010
Decision Date:	31 January 2011
Jurisdiction:	Common Law
Before:	Hislop J
Decision:	1. Judgment for the first defendant against the plaintiff. 2. The plaintiff's claim against the second defendant is dismissed. 3. Judgment for the plaintiff against the third defendant in the sum of $206,382.11. 4. Declare the first cross defendant on the first cross claim is liable to indemnify the first cross claimant in respect of his liability in these proceedings. 5. Judgment for the third cross defendant on the first cross claim. 6. All questions of costs are reserved pending written submissions by the parties. Such submissions to be served by 4.00pm on 14 February 2011 with replies by 4.00 pm on 28 February 2011.
Catchwords:	Common law - personal injury - construction site accident - liability for subcontractor - damages - insurance.
Legislation Cited:	Workplace Injury Management and Workers Compensation Act 1998 Civil Liability Act 2002 Home Building Act 1989 Workers Compensation Act 1987 Occupational Health and Safety Act 2001 Insurance Contracts Act 1984
Cases Cited:	Leighton Contractors Pty Limited v Fox [2009] HCA 35; (2009) 83 ALJR 1086 Stevens v Brodribb Sawmilling Co Pty Limited [1986] HCA 1; (1986) 160 CLR 16 Hill v Forrester [2010] NSWCA 170 The Committee for the Time Being of the Casino Show Society v Norris (1984) 3 ANZ Ins Cas 60-580 Kim v Cole [2002] QCA 176 Australian Iron and Steel Pty Limited v Luna [1969] HCA 66; (1969) 123 CLR 305 at 310 Legal and General Insurance Australia Limited v Eather (1986) 6 NSWLR 390 Fraser v BN Furman (Productions) Limited [1967] 1 WLR 898
Texts Cited:
Category:	Principal judgment
Parties:	Fadi Dargham (Plaintiff) Radovan Kovacevic (1st Defendant/Cross Claimant (Second Cross Claim)) Nutalab Construction Pty Limited (2nd Defendant) Sibin Djuric (3rd Defendant/Cross Claimant (First Cross Claim)) Mechanical and Construction Insurance Pty Limited t/as Mecon Insurance (1st Cross Defendant (First Cross Claim)/Cross Defendant (Second Cross Claim) Jabbour James Marroun (2nd Cross Defendant (First Cross Claim)) Nathanael Celik (3rd Cross Defendant (First Cross Claim))
Representation
- Counsel:	D.E. Baran (Plaintiff) A. Kostopoulos (1st Defendant/Cross Claimant (Second Cross Claim)) S. Torrington (3rd Defendant/Cross Claimant (First Cross Claim)) R. Sweet (3rd Cross Defendant (First Cross Claim)) J.C. Sheller (1st Cross Defendant (First Cross Claim)/Cross Defendant (Second Cross Claim)
- Solicitors:	Stephen Smart & Associates (Plaintiff) Russell C. Byrnes (1st Defendant/Cross Claimant (Second Cross Claim)) Carneys Lawyers (3rd Defendant/Cross Claimant (First Cross Claim)) Stojanovic Solicitors (3rd Cross Defendant (First Cross Claim)) William Roberts Lawyers (1st Cross Defendant (First Cross Claim)/Cross Defendant (Second Cross Claim)
File number(s):	2009/297474
Publication Restriction:

JUDGMENT

Introduction

1. On 4 July 2005 the plaintiff, then aged 24, sustained personal injury when, whilst working on a construction site at Strathfield, NSW, he fell down an unguarded stairwell void.
2. The plaintiff, in his statement of claim filed on 2 July 2008, asserted he had been working as a subcontractor on the site and sought damages for his injuries from the defendants who were, respectively:

(a) the first defendant - Radovan Kovacevic, who was sued as the builder/head contractor;

(b) the second defendant - Nutalab Construction Pty Limited, the first defendant's company, which was sued in the alternative as the head contractor. This company took no part in the proceedings as it was in liquidation;

(c) the third defendant - Sibin Djuric, who was sued as an owner/occupier of the site and as principal.

3. It was alleged in the statement of claim that the first and third defendants each owed a duty of care to the plaintiff which they breached. No breaches of statutory duty were relied upon.
4. The first and third defendants denied liability to the plaintiff. The third defendant, but not the first defendant, alleged the plaintiff's injuries were caused or contributed to by his own negligence.
5. The third defendant cross claimed against three cross defendants, namely:

(a) the first cross defendant - Mechanical and Construction Insurance Pty Limited ("Mecon"). Indemnity was sought from Mecon under a Contract Works Policy. It denied liability to indemnify under the policy;

(b) the second cross defendant - Jabbour Marroun. He was sued in contract and/or negligence as a subcontract carpenter engaged by the third defendant to do certain work on the site. The third defendant did not prosecute the cross claim against Mr Marroun as he was bankrupt. The third defendant filed a notice of discontinuance in respect of the cross claim against Mr Marroun on 4 October 2010;

(c) the third cross defendant - Nathanael Celik. Mr Celik was a subcontract carpenter engaged by Mr Marroun to work on the site. It was alleged he negligently exercised a supervisory role. The third defendant sought indemnity or contribution from the third cross defendant in the event he was found liable to the plaintiff. The third cross defendant denied liability to the third defendant.

6. The first defendant cross claimed against Mecon seeking indemnity under the Contract Works Policy. Mecon denied liability to indemnify the first defendant.
7. The third defendant did not cross claim against the first defendant nor did the first defendant cross claim against the third defendant.
8. There was no agreement as to the damages which the plaintiff would be entitled to recover in the event he established liability.
9. It was common ground the plaintiff was entitled to and did receive workers' compensation payments from Mr Marroun in respect of the subject injury - see Workplace Injury Management and Workers Compensation Act 1998 (WIM), Sch 1 cl 2.

Background

10. The construction site was owned by the third defendant with others. Five two-storey townhouses were being built upon the site. The site was fenced and entry to it was by a padlocked gate in the fence, the key to which was held by the third defendant.
11. The plaintiff had been engaged as a subcontract labourer by Mr Marroun from about February 2005. Mr Marroun had contracted with the third defendant to erect the timber framework and roofing timbers for the townhouses. In June 2005 the plaintiff commenced to work on the site as part of a team of subcontractors engaged by Mr Marroun (the "Pearl Design team"). The members of the team were Mr Celik, two carpenters, two apprentice carpenters (who were directly employed by Mr Marroun) and one labourer (the plaintiff).
12. At the time of injury the framework for the townhouses had been erected and roofing timbers were being put in place. The plaintiff was working in townhouse No. 1. The particleboard floor of the second storey of townhouse No. 1 was in place but there was a void in the floor where the stairway was to be completed. The size of the opening of the void was variously estimated from 4 metres x 4 metres to 2 metres x 2 metres. The opening of the void had been partially covered by a piece of plywood and a plank. The extent of the cover was variously estimated at 20 percent of the total void to one-third. There was no fence around the void to prevent a person from falling in. On the day of injury the plaintiff and other members of the Pearl Design team were required to work in the vicinity of the void. No work was being done on the void at the time of injury but the concrete steps were in place in the void and they were from time to time used for access between the first and second floors.
13. The plaintiff commenced work at about 7.00 am on the day of injury. He fell into the void at about 7.30 am, falling between 2.5 metres and 4.1 metres. He landed in a sitting position on the corner of a concrete step.
14. The plaintiff was conveyed by ambulance from the accident site to Westmead Hospital where he was treated and allowed to leave after a few hours.
15. The above facts are either common ground or are not the subject of any real dispute. I accept them.

The circumstances of injury

16. The plaintiff gave evidence that on the morning of his injury he was required to pass 6 x 2 wooden rafters weighing approximately 40 kilos to another worker in the vicinity of the void. He was required to do that work standing on the exposed floor of the second level of the townhouse, which floor was moist with morning dew.
17. He said in his evidence-in-chief:

" At 7 o'clock in the morning I arrived to work. We prepared all the tools, prepared everything that was going to go get everything ready, and we got the power saws out and the nail guns and everything and we started cutting getting the rafters, which are timbers that run across to hold the roof tiles up, and I cut the first piece of timber and as I was on my way to pass it to Mr Celik I lost control, I slipped with my right foot where I lost control and had to step on a piece [of] plywood that was covering the void which was the stairwell which gave way and where I fell down."

18. The plaintiff said later in his evidence:

"Q. When your foot slipped and you came into contact with the area where the void was otherwise situated, did your did your foot come into contact with the part of the covered void which is where the plank is or on the other part?

A. The part of where the plank was covering.

Q. Where the plank was covering?

A. Yes.

Q. Are you able to say what happened to that plank as you came into contact with the plywood covering the void?

A. To what I remember it just gave way. It slipped, gave way and I just found myself on the stairs with a lot of pain.

Q. Can you describe what actually physically happened to the plywood as you went down?

A. I'm not a hundred per cent sure if it snapped, slipped, I just remember falling."

19. No witness gave evidence of seeing the plaintiff fall though there was ample evidence of him laying injured at the bottom of the void.
20. The plaintiff's version of the accident was challenged in cross examination, to my mind, unsuccessfully. I accept the injury occurred generally in the manner stated by the plaintiff in his evidence.

Liability

21. The initial issue is whether the circumstances of injury attract liability to any of the parties. This issue is to be determined in circumstances where the evidence is frequently conflicting, the credibility of a number of witnesses, particularly the first and third defendants, who were admitted liars, is dubious, and recollection of events is often poor.

The liability of the first defendant

22. The first defendant is, by trade, a bricklayer/builder. He has worked as such for many years. He was a director of the second defendant. The second defendant was sued in the alternative. Apart from erecting its sign on the site, it appears to have had no active role in this matter. As the claim against it has not been pressed, it is unnecessary to further consider its role, if any.
23. A builder's licence was held by the first defendant. He signed the building contract with the third defendant in his own name. The building contract was in a standard form. It nominated the third defendant as the owner and the first defendant as the builder. It provided that the first defendant would have exclusive and uninterrupted possession of and access to the site for the performance of the work, would complete the works shown in the drawings and described in the specifications and that the third defendant would pay to the first defendant the cost of the works plus the fee payable under the contract. That fee was five percent of the cost of works (the cost of the works was of the order of $800,000). The first defendant was to be reimbursed at the rate of $40 per hour for work done by himself and his employees and subcontractors.
24. Prima facie, by reason of the contract, the first defendant was the builder and had all the rights, liabilities and responsibilities of that role. There was also documentary evidence of an improvement notice issued by a Workcover inspector alleging a breach by the first defendant, a record of a tool box talk purported to have been given by the first defendant on 27 March 2005 and a safe work methods summary alleged to have been prepared and signed by the first defendant. Consistently with this, following the injury to the plaintiff, the first defendant gave a statement to the Workcover investigators in which he admitted he was the builder in charge of the site. He pleaded guilty to charges arising out of the injury to the plaintiff.
25. However, the first defendant gave evidence in these proceedings that though he had signed the building contract he did not proceed with it from the beginning. He said he was not given possession of the site nor was he given a copy of the plans and specifications. He did no work on the site and visited it only on three, four or five occasions for the purpose of obtaining money from the third defendant. He said the third defendant paid him $20,000 or $30,000 for nothing. He had no role and no involvement in the job. He initially said the third defendant had engaged him solely to enable the third defendant to get home warranty insurance . He later appeared to resile from that, saying that "he didn't mean it". The allegation had not been put by the first defendant's counsel to the third defendant when initially cross examining him. It was later put and denied by the third defendant though at one stage he said he did employ the first defendant for his licence. The first defendant said his statement to the Workcover investigator in relation to the injury to the plaintiff consisted essentially of lies told for the purpose of protecting the third defendant.
26. There was some support for the first defendant's assertion that he played no active role on the site as none of the witnesses who had worked on the site and who gave evidence knew the first defendant or had seen him on the site; there was affidavit evidence that between November 2004 and early 2007 the first defendant had been renovating a property at Vaucluse pursuant to a building contract dated 3 November 2004. The deponent was overseas at the time of the hearing and could not be cross examined upon her affidavit in which she said the first defendant had told her "he had to also attend another building site during the same period, the location of which I am not aware of and as a result he was at my site between three to four days a week during the entire time renovations were carried out on my property." The improvement notice previously referred to named the third defendant as the contact and the person upon whom the notice was served. Although it was alleged that the first defendant was in breach, he denied that he had seen the notice prior to the plaintiff's injury; the first defendant denied conducting a tool box talk, asserting that the record of the tool box talk on 27 March 2005 had not been written by him save for the names of Mr Djukic and Mr Bencul which were the last names on the document. No satisfactory explanation for this was forthcoming and Messrs Bencul and Djukic, when called both denied ever working on the site. The third defendant alleged that Mr Bencul and Mr Djukic had worked on the site, but I reject this evidence in the light of the evidence given by Messrs Bencul and Djukic. It may well be that the additional names were added in order to meet possible criticism from the Workcover investigators investigating the injury to the plaintiff. The safe work method statement was prepared by the third defendant and signed by the first defendant subsequent to the injury to the plaintiff. The document was prepared as part of the response to the Workcover investigation.
27. Moreover, the third defendant gave evidence that though he gave the first defendant a copy of the plans and specifications, the first defendant did not carry out physical work on the site but would generally visit the site once or twice per week to inspect progress and advise the third defendant as to the works. These visits generally occurred outside of normal site working hours when the tradesmen were absent. The third defendant also made telephone calls to the first defendant seeking advice as to the works from time to time. He did not dispute that he paid the first defendant $20,000-30,000 which, he said, was for the services outlined above.
28. It is apparent from the third defendant's evidence in these proceedings, if believed, that the first defendant was not required to perform all, or indeed most, of the duties and functions of a building contractor. The selection and payment of subcontractors, the negotiating of terms of subcontract, the coordination on site of the various trades and the day to day attendance at and supervision of the site were carried out by the third defendant.
29. Whilst I accept that the signed building contract did not represent the actual arrangements between the first and third defendants, I do not accept that the first defendant had no role or involvement. I prefer and accept the evidence of the third defendant as to the first defendant's involvement. It appears to be consistent with the first defendant having commitments elsewhere and fitting in the subject job around it. It explains why telephone records record some 17 calls between the third defendant and the first defendant during the building work and why the third defendant contacted the first defendant and he attended on the day or the day following the injury. It is consistent with the receipt for the payment of money which referred to the provision of advice. It explains why the first defendant was not seen on the site by the tradesmen who gave evidence and why the third defendant would pay $20-30,000 to him. It would be sensible to have a qualified person checking that the job was being done properly particularly where the principal lacked the appropriate expertise and the townhouses were to be occupied by the third defendant, family members and friends.
30. In my opinion, the first defendant was, in fact, engaged for the limited role of ensuring, as far as reasonably practicable, that the townhouses were constructed in a proper and workmanlike manner.
31. In my opinion, whether the building contract was wholly abandoned as the first defendant submits or was varied as the third defendant submits does not matter. In either event, the first defendant owed no duty to the plaintiff. This is because there was no evidence or no acceptable evidence that the first defendant:

(a) hired any employees or subcontractors;

(b) took possession of the construction site;

(c) controlled or managed the construction site;

(d) was the entrepreneur or the occupier of the site;

(e) was required to give advice as to site safety to the third defendant;

(f) gave any advice to the third defendant as to site safety;

(g) was responsible for day to day directions to subcontractors;

(h) had any dealings with the tradesmen on site;

(i) was aware or ought to have been aware that the void was not fenced;

(j) knew or ought to have known that the void had been partially covered and/or that the cover was inadequate;

(k) was relied upon for advice by the tradesmen on site.

32. Accordingly, there will be judgment for the first defendant on the plaintiff's claim.

The liability of the third defendant

33. The third defendant was an aircraft mechanic. He had no qualifications as a builder though he had been previously involved in a development project. He, together with others, was the owner and occupier of the site.
34. The third defendant's evidence initially was that he would attend the site when not working as an mechanic and open and close the gates. He would check people coming onto the site and would engage contractors to work on the site. He had no other involvement and, in particular, did no building work himself.
35. The third defendant, later in his evidence, explained that he selected the contractors with the advice of the first defendant, but conducted all of the financial dealings with them as the first defendant had a gambling problem (the first defendant agreed he was a gambler). Acting on the advice of the first defendant, he would give directions, if necessary, to the subcontractors about the job and on one occasion had required the timber in the bathroom to be removed and replaced as it was inappropriate. He conceded he did safety checks of the site most days and that when required by Mr Marroun to provide additional scaffolding he arranged for this to be done by a firm of scaffolding subcontractors.
36. There was evidence from members of the Pearl Design team that during the period they were on site the third defendant was there every day, though not necessarily for the whole of the day, would confer with Messrs Marroun and Celik and occasionally issue instructions to other members of the team. None of the witnesses observed the third defendant do any physical work on the site. He admitted in his insurance claim form that he was partly to blame for the plaintiff's injury but he did not say why he reached this conclusion.
37. The duty of care owed by a principal to an independent contractor was reviewed by the High Court in Leighton Contractors Pty Limited v Fox [2009] HCA 35; (2009) 83 ALJR 1086. There the High Court held (at [48]) that the relationship between principal and independent contractor was not one which, of itself, gave rise to a common law duty of care much less to the special duties resting on an employer to ensure that care was taken. However, in some circumstances a duty will be owed by the principal to use reasonable care to ensure that a system of work for one or more independent contractors is safe ( Fox [20]).
38. The High Court in Fox at [20] (see also [62]) affirmed that the circumstances in which such a duty was owed were those explained by Brennan J in Stevens v Brodribb Sawmilling Co Pty Limited [1986] HCA 1; (1986) 160 CLR 16 at 47-48, namely:

"An entrepreneur who organises an activity involving a risk of injury to those engaged in it is under a duty to use reasonable care in organising the activity to avoid or minimise that risk, and that duty is imposed whether or not the entrepreneur is under a further duty of care to servants employed by him to carry out that activity. The entrepreneur's duty arises simply because he is creating the risk and his duty is more limited than the duty owed by an employer to an employee. The duty to use reasonable care in organising an activity does not import a duty to avoid any risk of injury; it imports a duty to use reasonable care to avoid unnecessary risks of injury and to minimise other risks of injury. It does not import a duty to retain control of working systems if it is reasonable to engage the services of independent contractors who are competent themselves to control their system of work without supervision by the entrepreneur. The circumstances may make it necessary for the entrepreneur to retain and exercise a supervisory power or to prescribe the respective areas of responsibility of independent contractors if confusion about those areas involves a risk of injury. But once the activity has been organised and its operation is in the hands of independent contractors, liability for negligence by them within the area of their responsibility is not borne vicariously by the entrepreneur. If there is no failure to take reasonable care in the employment of independent contractors competent to control their own systems of work, or in not retaining a supervisory power or in leaving undefined the contractors' respective areas of responsibility, the entrepreneur is not liable for damage caused merely by a negligent failure of an independent contractor to adopt or follow a safe system of work either within his area of responsibility or in an area of shared responsibility."

39. In addition to the duty owed as principal to an independent contractor, the principal, if the occupier of the construction site, also owes a duty, as occupier, to persons coming on to the site to use reasonable care to avoid physical injury to them ( Fox at [48]).
40. A principal may also, under the general law, be vicariously liable to an independent contractor for injury negligently inflicted by the principal's employees or for the tortious acts of independent contractors who the principal has directly authorised.
41. The third defendant, in my opinion, was an entrepreneur who organised an activity which created a risk. The circumstances, it would seem from the evidence, involved some uncertainty as to whose duty it was to guard against any danger created by the existence of the stairwell void. Accordingly, in accordance with the principles in Fox , the circumstances made it necessary for the entrepreneur to retain and exercise the supervisory power or to prescribe the respective areas of responsibility of independent contractors.
42. Four matters combined to cause injury to the plaintiff, namely:

(a) the existence of the void;

(b) the inability of the partial cover to withstand the weight of the plaintiff and his load;

(c) the dewy nature of the flooring which caused him to lose his footing;

(d) the absence of a fence to prevent entry to the void.

43. The third defendant was aware of the presence of the void, as was Mr Celic. Mr Celik gave evidence that he asked the third defendant to cover the void and the third defendant said he would do so. The plaintiff sought to corroborate this evidence. He said he was present within earshot when the conversation took place.
44. The third defendant denies any such conversation took place. His evidence initially was that Mr Celik had agreed to cover the void but later he said "Mr Marroun told me Celik will put on the cover, but Celik didn't tell me he will do this." Mr Marroun denied this conversation.
45. The plaintiff and Mr Celik gave evidence the third defendant placed the partial cover over the void but neither observed this occur. It was merely an assumption.
46. The third defendant denied he placed the partial cover over the void. He asserted Mr Celik had done so but he had not observed this occur. He said he looked at the cover when it was in place but did not make any decision as to its adequacy for the safety of workers on the site as Mr Marroun told him it would be good enough. This conversation was denied by Mr Marroun.
47. I am unable to determine who agreed to construct the cover, who did construct it and whether any express assurances as to its adequacy were given. I did not find the evidence of any of the relevant witnesses satisfactory and I am unable to determine where, on balance, the truth lies. I have borne in mind that the third defendant is not a carpenter or scaffolder, there was evidence he had done no physical work on the site and there were no other contractors on the site. It was at least a real possibility that if the third defendant undertook to cover the void he would have asked the Pearl Design team to perform the task.
48. Both Mr Celic and the third defendant were aware prior to the plaintiff's fall that the partial cover was in position. Mr Zouein, a subcontract carpenter engaged by Mr Marroun to work on the site, gave evidence he told Mr Celic the cover was "not right" and there should be a handrail. He said the third defendant was there at the time and he said to the third defendant that "this didn't look right and someone is going to get hurt sooner or later, being me or someone else, anyone." He said he couldn't tell whether the third defendant said anything in response. This evidence was somewhat uncertain, particularly that part of it which concerned the third defendant. Mr Zouein said he thought the third defendant was present but then proceeded to give evidence of a definite conversation with the third defendant though he said he had no recollection of any response by the third defendant. In cross examination he conceded that when asked by a work inspector whether he had any concerns about the safety of the job prior to the injury to the plaintiff he replied "No, not really". He conceded his memory may have misled him. I do not accept Mr Zouein's evidence as to the conversations with Mr Celik and the third defendant as I am not satisfied as to the reliability of his recollection.
49. The provision of a partial cover, even if solidly affixed and capable of withstanding the weight of a man and his load, nevertheless left the remainder of the void as a danger. This could be guarded against by the provision of a fence, and reasonable care required that this should be done. There was evidence that the steps in the void were used to gain access to the second floor but there was no evidence that this would have rendered it impractical to place the fence around the stairwell void. Such a fence was placed in position following the fall. I infer the void was only partially covered in order to permit the use of the stairs as a means of access to the second floor. Subsequent events show that the cover either was not adequately affixed or was incapable of bearing the necessary weight. However, this was not apparent to the third defendant prior to the plaintiff's fall.
50. In my opinion, the third defendant owed a duty to the plaintiff both as occupier and pursuant to the principles in Fox . A protective fence around the perimeter of the void would have prevented the plaintiff's injury. In my opinion, reasonable care required that such a fence should have been placed and maintained in position prior to the plaintiff's injury. The third defendant, in my opinion, was negligent in failing to provide such a fence or ensure that it was provided.
51. There was reference to safe work method statements and similar documents. However, those documents only came into existence after the plaintiff's fall and there was no evidence of reliance upon them.
52. The third defendant submitted the risk of falling into the void was obvious and he had no duty to warn the plaintiff of the risk - Civil Liability Act 2002 ("CLA"), s 5F-H. The plaintiff conceded he was well aware of the void and the fact that he could fall into it. No warning of this was required. This, however, does not obviate the third defendant's liability to the plaintiff for the injuries sustained in the circumstances of this case.
53. There will be judgment for the plaintiff against the third defendant.

The liability of Mr Marroun

54. Mr Marroun was a qualified carpenter. He was licensed as such under the Home Building Act 1989. Mr Marroun traded under the name Pearl Design and Construction. He later incorporated the business as Pearl Design and Construction Pty Limited. Mr Marroun gave evidence that the incorporation occurred after the injury to the plaintiff. He contracted with the third defendant for the erection of the timber frame and roof timbers of the development. He engaged a number of independent contractors to carry out the work he had contracted to perform. He denied he was a partner with Mr Celik or that they shared the profits of this job contrary to an allegation by the third defendant that he had been told by Mr Marroun that Mr Marroun and Mr Celik were co-owners and partners.
55. The plaintiff did not sue Mr Marroun as he had failed to establish a permanent impairment of at least 15 percent, which was a prerequisite to obtaining an award of damages against Mr Marroun (s 151H(1) Workers Compensation Act 1987). The third defendant did not pursue his cross claim against Mr Marroun as Mr Marroun was bankrupt.
56. Mr Marroun was on the site only on limited occasions. He was not on site at the time of the injury to the plaintiff.
57. Mr Marroun accepted he owed a duty to provide a safe system of work for those engaged as part of the Pearl Design team. He recognised the danger of the void. He agreed that the void could have been adequately fenced for under $400. He gave evidence the timber would cost $20 and he could have constructed the fence in five minutes though it may take an inexperienced person about one hour, in which event the labour costs may be in the order of $100. Mr Marroun owed a duty of care in accordance with Fox to ensure that a safe place and system of work was provided, and it was not. However, as Mr Marroun was not sued by the plaintiff and the cross claim against him by the third defendant was not pursued, his involvement is relevant only to the application of s151Z(2).

The liability of Mr Celik

58. The third cross defendant, Mr Celik, was a qualified carpenter. He had allowed his licence under the Home Building Act 1989 to lapse as he was working under Mr Marroun and had the benefit of his licence. He agreed he was "the supervisor" of the Pearl Design team.
59. He stated that his role as supervisor of the Pearl Design team was to ensure that the scope of works were properly carried out. He was not responsible for the safety of the members of the team.
60. Mr Celik recognised the existence of the danger posed by the void to people working in the area. He gave evidence he requested the third defendant to remove the danger. This was not done. He warned the team to be careful when working near the void. He did this 15 minutes before the accident occurred.
61. Mr Celik took no steps to put up a fence or to adequately cover the void as, he said:

(a) the area would be used by other trades and the obligation to take precautions therefore was on those responsible for the whole site;

(b) he owed no duty of care to the members of the Pearl Design team;

(c) it would be difficult, costly and time consuming to do this work and he had no authority to do it as it was not part of the scope of works.

62. The crucial issue, in my opinion, is whether Mr Celik assumed responsibility for the safety of the independent contractors engaged by Mr Marroun. In the absence of him accepting such a role I do not consider that he can be seen as owing the plaintiff a relevant duty of care.
63. Mr Celik subcontracted to Mr Marroun at an hourly rate as did the other subcontractors in the team. The contract for the work in which the plaintiff was engaged when injured was between Mr Marroun and the third defendant. Mr Celik was not a party to that contract. He was not a principal, he did not engage or employ the plaintiff. He was not, I find, a partner of Mr Marroun or entitled to share in any profit arising from the work undertaken by Mr Marroun.
64. Mr Celik gave evidence he did not undertake to be responsible for the safety of the members of the team. This was confirmed by Mr Marroun, who told the Workcover investigator that Mr Celik was employed by him to supervise the work done by the men and to ensure that it was properly carried out. He did not undertake a responsibility for the safety of the men engaged by Mr Marroun. Mr Marroun confirmed this in his evidence in these proceedings. He did not give evidence that he had delegated his duty to the plaintiff to Mr Celik.
65. It is true Mr Celik did warn the team of the void but this was in the context of the members of the team voluntarily warning each other of a perceived common danger pursuant to concern for one's fellow workers, not pursuant to a legal duty to do so. Nor was the making of a request by Mr Celik to the third defendant (if such was made) other than as a reminder to the third defendant to perform a duty which Mr Celik contended the third defendant owed to all persons on the site.
66. In my opinion, Mr Celik did not owe a duty of care to the plaintiff.
67. If I am in error in that conclusion, it would occasion no different result. If Mr Celik was liable to a member of the Pearl Design team, it would be because performance of the duty owed by Mr Marroun to the team member had been delegated to Mr Celik.
68. The only claim against Mr Celik is that brought by the third defendant for contribution. No contribution would be recoverable from Mr Celik by the third defendant by reason of the application of s151Z(2) which would operate to limit the entitlement of the third defendant to the deduction in the verdict resulting from the operation of the section.

Contributory negligence

69. The third defendant alleged that any injury suffered by the plaintiff was caused or contributed to by the negligence of the plaintiff, which it particularised as follows:

"(a) Failing to keep a proper lookout.

(b) Failing to comply with reasonable directions by Jabbour Marroun or in the alternate by Nathan Celic.

(c) The Plaintiff failed to comply with the Site Management Plan advised to him by Mr Marroun and/or Mr Celic.

(d) The Plaintiff failed to comply with the Safe Work Method Statement issued to him by Mr Marroun.

(e) The Plaintiff failed to comply with a direction that workers not walk across stair voids where materials were being hoisted over beams placed across the void.

(f) Despite being directed by Mr Marroun and Mr Celic to walk around the void, walking across the hoisting beam.

(g) Stepping on sheets of timber which a reasonable person should know would not support him.

(h) Walking in and being in an area despite being instructed by Mr Celic not to walk in that area.

(i) Failing to dry water from the area he was working around."

70. Counsel for the third defendant submitted that, if the plaintiff succeeded against his client, an apportionment for contributory negligence in the order of 75 percent was appropriate.
71. The plaintiff conceded he had a responsibility, as a subcontractor, to take care for his own safety. He conceded that he knew the void was there, as he had seen it uncovered approximately four days before injury and subsequently partly covered on the day of the injury. He knew that it posed a danger of injury if he fell into it, knew that he had to be wary of the danger and had been so warned some 15 minutes before the accident.
72. However, the plaintiff's injury was not caused by a deliberate voluntary act on his part of stepping onto the cover but by his involuntary reaction resulting from slipping on the floor. There is also an absence of proof of the factual underpinning of a number of the particulars, eg it was not established that a reasonable person would know the cover would not support him, that the plaintiff could effectively dry the dew from the floor area and so on. The onus of establishing contributory negligence lies with the third defendant. In my opinion, that onus has not been discharged. There will be no deduction for contributory negligence.

Section 151Z(2) of the Workers Compensation Act 1987

73. Section 151Z(2) of the Workers Compensation Act 1987 provides relevantly:

(2) If, in respect of an injury to a worker for which compensation is payable under this Act:

(a) the worker takes or is entitled to take proceedings independently of this Act to recover damages from a person other than the worker's employer, and

(b) the worker also takes or is entitled to take proceedings independently of this Act to recover damages from that employer,

the following provisions have effect:

(c) the damages that may be recovered from the person by the worker in proceedings referred to in paragraph (a) are to be reduced by the amount by which the contribution which the person would (but for this Part) be entitled to recover from the employer as a joint tortfeasor or otherwise exceeds the amount of the contribution recoverable,

(d) the amount of the contribution that the person is entitled to recover from the employer as a joint tortfeasor or otherwise is to be determined as if the whole of the damages were assessed in accordance with provisions of Division 3 as to the award of damages..."

74. (a) The third defendant and Mr Marroun were in breach of the duty of care owed by each to the plaintiff;

(b) the injuries sustained by the plaintiff in the fall did not result in a degree of permanent impairment of the plaintiff that was at least 15%;
(c) accordingly no damages could be awarded against Mr Marroun - s151H of the Workers Compensation Act 1987 ;
(d) the amount of contribution that the third defendant was entitled to recover from Mr Marroun as a joint tortfeasor pursuant to s151Z(2)(d) was to be determined at nil;
(e) the damages recoverable by the plaintiff from the third defendant were to be reduced by:

"...the amount by which the contribution which the person would (but for this part) be entitled to recover from the employer as a joint tortfeasor."

75. The apportionment of damages between joint tortfeasors involves:

"...a comparison both of culpability, that is, of the degree of departure from the standard of care of the reasonable man, and of the relative importance of the acts of the parties in causing the damage ... it is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subject to comparative examination." - James Hardie and Coy Pty Limited v Roberts [1999] NSWCA 314; (1999) 47 NSWLR 425 at 446 [90]."

76. In my opinion, the comparative examination of the culpability and relevant importance of the acts of the parties leads to the conclusion that the amount of contribution should be assessed at 25 percent. I have reached that conclusion as it seems to me the void was a potential risk to all persons coming onto the second floor of the site and thus the principal/occupier should bear a greater responsibility to that of a subcontractor with responsibilities only to the limited number of persons who were working under his control.

Damages

77. The plaintiff was born in Australia in August 1980. He obtained his School Certificate. On leaving school he worked for Franklins and Woolworths, each in the fruit and vegetable department for about 18 months each. He then worked for about a year for a spring water supplier. He told Mr Hawkins, a vocational psychologist qualified on his behalf, that "from 2001-2005 he described himself as 'a young hoon'". He was on unemployment benefit and only worked occasionally during this period in jobs such as labouring. He had no prior accidents, injuries or disabilities. The plaintiff claimed he had been active in a number of sports, though he told Dr Panjiratan that prior to this injury he was not involved in any sport. Dr Breit recorded a history his sporting activities ceased when he started work.
78. The plaintiff said he did one or two short courses at TAFE but it is unclear if he completed these. He married in 2004 and in February 2005 the first of his two children was born. He commenced work with Mr Marroun in 2005. He said he had intended to continue work as he had a child to support and he proposed to obtain trade qualifications as a carpenter.
79. The plaintiff gave evidence that he suffered extreme pain when he fell. He said that for the first month or so after the injury he could not bend at all. He had to stay upright the whole time or lie on his stomach. He could not sit at all. He was virtually on the couch in the bedroom the whole time. His wife did everything for him, getting him up and off the couch, assisting with going to the toilet, showering, getting dressed etc. He took pain medication which at times gave relief and at other times did not. After three months he was walking better but still had a lot of pain in the leg, arm and neck and was still pretty much on the couch. He still required assistance from his wife. Gradually he was able to do more things but a year after injury he was still, he said, in too much pain to resume work. Essentially he managed his own treatment using hot baths and creams. He continues this regime to the present time. He, on occasions, will take Cerebrex and he continues to see his general practitioner, Dr Hanna. The injury has had an emotional effect on him in that, he said, it has taken a lot out of his life.
80. The plaintiff was certified unfit for work by Dr Hanna, until 23 November 2005 when he certified him fit for suitable duties, working four hours per day five days per week. Certificates to 24 March 2006 from Dr Hanna were tendered in evidence. The certificates from 23 November 2005 to 24 March 2006 all marked the plaintiff fit for suitable duties save for a week commencing 23 February 2006 when he was certified unfit due to an exacerbation. No certificates, reports or notes from Dr Hanna later than 24 March 2006 were tendered nor was he called to give evidence.
81. The plaintiff did not return to work when certified fit for suitable duties by Dr Hanna.
82. In April 2006 the workers' compensation insurer requested the plaintiff to resume work with Mr Marroun but he refused because of Mr Marroun's attitude toward him since being required to pay workers compensation. Mr Marroun was not examined or cross examined as to this matter and I accept there was an unsatisfactory relationship between them at that time. The plaintiff said he looked for light work in this period but was unsuccessful. In September 2007 the plaintiff commenced to work two to three days per week doing light work for Mr Celik. This lasted for six to eight months. He said he was paid $300 per week. After ceasing work with Mr Celik the plaintiff did not seek any employment. He did not take any courses. In February 2009 he commenced a business as a handyman with another man. The latter does the heavier work. He receives $200-300 net per week from this work. The business is expanding. He has noticed improvement in his physical ability. He considers there are many jobs he could do, his restriction being only on heavy lifting.
83. The plaintiff gave a history to doctors that x-rays at the hospital following the fall revealed a fracture of the coccyx. However, the hospital x-ray report stated: "SACRUM (lat) No retro or antero listhesis is seen at the L5/S1 level. No obvious displaced fracture is evident however AP is required to assess for possible fracture." Subsequent radiological reports were as follows:

29 July 2005 - x-ray of the lumbo sacral spine:

"There is a normal lumbar lordotic curve. No muscle spasm, spondylolisthesis or Parr's defect noted. The sacrum and sacroiliac joints are normal."

29 July 2005 - CT scan of the lumbar spine:

"The L3 to the coccyx was scanned with scans parallel to the disc spaces.

The lumbar spine is normal with no bony injury, disc bulge or spinal stenosis. The sacrum is normal and no obvious sacral coccygeal fracture was defined in the films available."

18 November 2005 - MRI scan of whole spine:

"No evidence of central canal stenosis, disc bulge/protrusion or foraminal narrowing in cervical or thoracic spine."

29 July 2006 - CT scan of lumbar spine showed:

"The sacrum is normal and no obvious sacral or coccygeal fracture was defined in the films available.

31 July 2008 - MRI scan of cervical spine:

"All the cervical intervertebral discs are of normal size and appearance and of normal signal intensity and there is no evidence of any cervical disc bulge or protrusion. There is a small central disc bulge at the T2/3 level and this indents the anterior margin of the thecal sac and reaches back to the spinal cord just to the left of the midline. It does not cause any significant compression of the spinal cord. No other abnormalities are demonstrated in the MRI of the cervical spine. The cervical spinal cord has been visualised between the craniocervical junction and T5 and shows no abnormality.

Comment: Small T2/3 disc bulge."

31 July 2008 - MRI scan of lumbar spine:

"There is no evidence of any disc degeneration and disc bulging or disc protrusion. Normal MRI scan of the lumbar spine."

84. The plaintiff relied particularly upon the reports of Dr Ellis, an orthopaedic surgeon, and Dr Teoh, a psychiatrist. These doctors were qualified on behalf of the plaintiff. Dr Ellis in his latest report dated 18 August 2008 concluded the plaintiff sustained musculo ligamentous contusion, aggravation of degenerative changes in his back and neck with referred pain and deficit in the left lower limb. Consequent upon the neck injury there were secondary effects in his left upper limb with referred pain and neurological deficit. Dr Ellis considered the plaintiff was unable to return to work though there had been improvements since the last assessment in February 2006. Dr Ellis considered there was no evidence of psychosomatic illness and rehabilitation assistance and assessment should be provided in an attempt to retrain the plaintiff in alternative lighter work as it was unlikely he would return to his previous employment as a builder's labourer.
85. Dr Teoh, in his report dated 27 October 2008, concluded that the plaintiff's presentation was consistent with the diagnosis of an adjustment disorder with depressed mood. He considered the psychiatric condition was caused by the plaintiff's chronic pain and physical disability and that he could benefit from pain management and counselling.
86. The defendants relied particularly upon a report of Dr Bodel dated 3 August 2009. Dr Bodel, an orthopaedic specialist, concluded that an x-ray of the sacrum available to him indicated there was no obvious fracture in that region. He considered the plaintiff had suffered a soft tissue injury to the sacro-coccygeal region and the lumbo-sacral region and a soft tissue injury to the neck. He concluded the plaintiff should have quite a good prognosis for these injuries. He was at a loss to understand the level of ongoing complaint at this stage four years after injury. He considered that the plaintiff would have some ongoing intermittent symptoms in the neck and the back but should be capable of a wide range of physical activities on the basis of his current complaints and that he should be capable of his pre-injury style of work. He considered the plaintiff's motivation for a return to work must be somewhat questionable as he had no clinical sign of major physical impediment which would prevent him from a graded reintroduction to appropriately modified work. Over a three to four month period, he should be able to upgrade to his pre-injury level of work. He noted that the difference between the report of Dr Ellis and his assessment was that Dr Ellis found clinical evidence of nerve root involvement or radiculopathy in either arm or either leg and Dr Bodel could find no such evidence on clinical testing.
87. Dr Bodel's opinion was consistent with that of Dr Panjiratan who, in his report of 25 January 2006, reported:

"Mr Dargham has an unusual pain response. He is very stiff all over and walks awkwardly. It appears as if the injury occurred only last week. I cannot explain this...The recovery time has exceeded expected time frames but the worker is still not capable of returning to work...He should have recovered within a few weeks of the fracture."
(I note Dr Panjiratan did not have x-rays or radiological reports before him at examination and accepted the plaintiff's history of a fracture.)

88. I prefer the opinion of Dr Bodel which appears more consistent with the radiological picture which provides no evidence of a fracture or pre-existing degenerative changes. I note the psychological condition commented upon by Mr Teoh is dependent upon the plaintiff's physical condition.
89. In the course of the hearing some evidence was provisionally admitted subject to submissions as to admissibility being made in final addresses. Most of these matters resolved themselves during the hearing and were not the subject of specific submissions in addresses. One matter provisionally admitted was a medical certificate and report by Dr Breit dated 14 September 2006 issued pursuant to an assessment under Pt7 of WIM. These documents were tendered by counsel for the third defendant and objected to by the plaintiff's counsel, the primary objection being "that effectively it's not an expert's report where the code of conduct is adopted". Counsel for the third defendant submitted the code of conduct was inapplicable as the certificate and report were outside the provisions of UCPR 31.18 and 31.23. However, in his final address counsel for the plaintiff did not refer to this issue but instead relied upon the assessment contained therein as "not an insignificant whole person impairment", such that the Court could not dismiss him as a man not injured. In these circumstances, and as I would have determined the "primary objection" in favour of the third defendant, I have treated the certificate and report as admitted into evidence. I note also that two matters the subject of provisional admission, namely what would the first defendant have done if responsible for safety on the site, was admissible against the first defendant only but, in the light of my findings, it now has no relevance, and the third defendant's evidence that he was not licensed to do building work was admissible.
90. Dr Breit, on 14 September 2006, reported radiology reports do not confirm a fracture, there was no evidence of a radiculopathy, that the stiff manner in which he held his spine was inconsistent with the physical examination but he had scalene muscle tenderness and tightness which was not something that one can feign. Despite his complaints of extraordinary levels of back pain he does have an asymmetrical loss of movement and therefore an assessment of both areas for impairment is appropriate.
91. Reports of a physiotherapist from the Vocational Capacity Centre dated August 2009 concluded:

"Results of this assessment indicate that Mr Dargham is physically capable of sedentary, semi-sedentary and light manual work tasks. He did not demonstrate the capability to perform his pre-injury occupation as a builders labourer."

Apparently the plaintiff gave a history he had not worked since the injury. The report also indicated the plaintiff's maximum capability level may not have been adequately observed on certain tests. I do not attach any significant weight to this report or other reports of this nature.

92. Plaintiff's counsel prepared a schedule in which he outlined the claims which were pressed on behalf of the plaintiff. The schedule and the response of the first and third defendants is set out hereunder in tabular form.

Plaintiff		1st Defendant	3rd Defendant
Non Economic Loss - 40% of most extreme case	$189,400.00	30% most extreme case -$142,050.00	$40,000.00
Past Economic Loss - Taking the average of the pre-accident earnings $713.00 per week x 5 years thus $185,380 less 1 year of earnings @$300.00 per week to take into account the business presently conducted by the plaintiff and the earnings from working with Mr Celik which equates to $15,600.00 thus =	$169,780.00	$30,000.00	$32,088.00
Future Economic Loss - Taking the average between the weekly figure for the past of $713.00 per week and an average of the likely figures for the future which is $963.00 @ 100% of $838.00 per week less an ongoing residual earning capacity of $300.00 per week, therefore an ongoing loss of $538.00 per week for 10 years less 15% thus =	$188,819.00	$100 per week for the next 10 years (less 15% vicissitudes), but say with adjustments -$50,000.00	Future economic buffer $25,000.00
Past and Future Lost Superannuation Contributions No claim made as subcontractor	$0.00	Nil
Past Gratuitous Domestic Assistance For the first 26 weeks @ 3 hours per day, 7 days per week @ $20.00 per hour =	$10,920.00
Thereafter 1 hour per day @ $23.00 per hour, 7 days per week x 234 weeks =	$37,674.00	$10,000.00	Nil
Future Gratuitous Domestic Assistance - @ 1 hour per day x 7 days per week for the next 10 years @ $23.00 per hour which equates to $161.00 per week x multiplier 412.9	$66,476.00	$5,000.00
Future Treatment Counselling, General Practitioner consultations, Orthopaedic Specialist reviews, creams and medication =	$25,000.00	$5,000.00	Pharmacy & analgesics - $5,000.00 Rehab & pain management $10,000.00
Fox v Wood	$730.000	$730.00
Past Out of Pocket Expenses	$7,366.14	$7,366.14

93. I assess damages as follows.

Non economic loss

94. In my opinion, the plaintiff, as a result of the fall, suffered soft tissue injuries to the sacro-coccygeal, lumbo sacral and neck regions. These injuries occasioned him significant pain and marked disability for about three months. The pain and disability gradually decreased thereafter and by 23 November 2005 he was fit to resume limited part time work though he continued to have some ongoing symptoms, the effect of which was exacerbated, to some degree, by an adjustment disorder and depressed mood. The plaintiff has no clinical findings of major physical impediment and, in the opinion of Dr Bodel in August 2009, would have been able to upgrade to his pre-injury level of work after three or four months of a gradual return to work.
95. In my opinion, the effects of the injury had largely subsided by December 2009 and no future problems resulting from the injury are to be anticipated though the plaintiff may have some intermittent low level pain for some time to come.
96. The maximum amount of damages that may be awarded for non economic loss (s 16 of the CLA) is $500,500. In my opinion, the appropriate assessment for non economic loss is 30 percent. The award on this head of damages is accordingly $115,000.

Past economic loss

97. There was evidence from Mr Marroun and Mr Celic that the plaintiff was a competent labourer. He was being paid $25 per hour gross at the time of injury. He normally worked a 40 hour week. He did not dispute that for the period he was working for Mr Marroun his gross salary was a little over $12,000, from which he claimed expenses of $5000, leaving him with a net figure before tax of $7000, or about $400 per week.
98. The plaintiff's employment record for the four years prior to being engaged by Mr Marroun was unimpressive. I accept the plaintiff's attitude towards work may have changed as a result of the birth of his first child. However, it is likely that his employment with Mr Marroun may have come to an end by the time of Mr Marroun bankruptcy and the plaintiff may have encountered some difficulty obtaining employment at the same level of remuneration. There is also the possibility that he may have had an increase in salary at some time during that period. In my opinion, it would be reasonable to calculate the past economic loss until 2 April 2008 on the basis that, but for injury, the plaintiff would have averaged earnings after expenses of $600 net per week and thereafter $700 net.
99. I would assess the plaintiff's damages for past economic loss as follows:

4 July 2005 - 23 November 2005: Plaintiff totally incapacitated for work. $600 net per week for 20 weeks =	$12,000
24 November 2005 - 24 March 2006: The plaintiff was certified fit to work four hours per day, five days per week with lifting limited to four kilograms, sitting to half an hour and no frequent bending. The plaintiff did not work during this period. In my opinion, the restrictions on the plaintiff's work capacity were such that it was improbable he could obtain any employment and for present purposes his loss should be calculated at $600 net per week, ie	$10,800
25 March 2006 - 1 September 2007: The plaintiff had a capacity for suitable light work during this period but refused employment with Mr Marroun which was offered to him and did not obtain other employment. The refusal to work for Mr Marroun appears to have had a basis in the relationship between the two men. I would allow the plaintiff loss of wages for this period of $600 net per week as his fitness for work was still quite limited, ie	$45,000
2 September 2007 - 1 April 2008: The plaintiff was employed in light duties by Mr Celik at $300 net per week approximately. I allow a loss of $300 net per week for the period, ie	$9,000
2 April 2008 - 1 February 2009 The plaintiff ceased working with Mr Celik. He did not look for work or attend any courses. The plaintiff had a capacity to work which I assess, if exercised, would have earned him approximately $500 net per week. I assess his earnings but for injury would by this time have risen to, say, $700 net per week. However, he lacked formal job qualifications and may not have been able to fall back upon heavy work which might otherwise have been available to him. I assess his loss at $300 net per week for this period, ie	$13,200
2 February 2009 - 31 December 2009: The plaintiff commenced his handyman business earning approximately $300 net per week. During this period he had a higher earning capacity than $300 net per week but it is reasonable to allow him actual loss as it was necessary to take time to establish the business. The plaintiff stated that he preferred to open his own business rather than seeking employment elsewhere. I allow the plaintiff a loss of $400 net per week for this period, ie	$19,200
1 January 2010 to 31 January 2011 I find the plaintiff's capacity to earn in his handyman business or in other suitable employment is $600 net per week. I allow a loss of $100 net per week for the period, ie approximately	$5,600:

100. For past economic loss, I allow the sum of $114,800

Future economic loss

101. In my opinion, the plaintiff is now virtually able to do all forms of work which he would have been able to do had he not sustained the subject injury. I allow a small buffer against the possibility some minor intermittent limitation may still exist. For this I allow $25,000.

Past gratuitous care

102. The plaintiff and his wife gave evidence as to assistance provided to the plaintiff by his wife as a result of the injury. They gave evidence that the plaintiff required a high level of assistance during the first three months. The plaintiff's wife assessed the time spent as being in the order of two to three hours per day. During the period of three to six months following injury, the amount of care afforded was in the order of approximately one hour per day.
103. The plaintiff also asserted he had assisted around the house with jobs prior to his injury. He said this occupied four to five hours per week and his wife has had to do those jobs since his injury. This assertion is contrary to the history recorded by Dr Panjiratan in his report dated 25 January 2006 where he recorded "[The plaintiff] stated that his wife does everything at home and did prior to the injury." Dr Breit recorded a history that his wife does all the household duties and continues to do so. The plaintiff, when questioned as to this, said he did not recollect if he told the doctor that but conceded it was a possibility. It is unnecessary to pursue this matter further as no claim is pressed in this regard.
104. Section 15 of the Act provides relevantly:

"(3) Further, no damages may be awarded to a claimant for gratuitous attendant care services unless the services are provided (or to be provided):

(a) for at least 6 hours per week, and

(b) for a period of at least 6 consecutive months."

105. In Hill v Forrester [2010] NSWCA 170 the Court of Appeal held a party

"is not entitled to recover damages in respect of any period during which the gratuitous services were not provided (or are not to be provided) to him for at least six hours per week."

106. I find the plaintiff required gratuitous attendant care services throughout the six month period commencing 4 July 2005. I allow compensation, as claimed by the plaintiff, for past assistance at $20 per hour for three hours per day for three months from 4 July 2005 and at $20 per hour for the following three months at one hour per day. This allowance totals $7280.
107. The plaintiff has claimed care at the rate of one hour per day seven days per week from that date until a date ten years in the future. In my opinion, after the first six months had expired, the plaintiff's need was less than six hours per week and has continued to reduce until, as the plaintiff conceded in cross examination, nowadays he does not need any help. In these circumstances, the plaintiff's claim after the first six months must be rejected pursuant to s15(3)(a) of the Act.

Future treatment

108. The plaintiff at present treats himself using a cream supplied by a friend who is a pharmacist, occasionally takes painkillers, occasionally visits his general practitioner, Dr Hanna. I allow for future treatment the sum of $5000.

Fox v Wood

109. This head of damage is agreed at $730.

Past out of pocket expenses

110. This head of damage is agreed at $7366.14.
111. I assess total damages as follows:

Non economic loss $115,000.00

Past economic loss 114,800.00

Future economic loss 25,000.00

Past gratuitous care 7,280.00

Future gratuitous care Nil

Future treatment 5,000.00

Fox v Wood 730.00

Past out of pocket expenses 7366.14

$275,176.14

Less 25 percent employer's liability $206,382.11

Insurance

The policy provisions

112. It was common ground that the first and third defendants were insured under a Contract Works Policy with Mecon.
113. The relevant insuring provisions of the policy were as follows:

"5.00 In accordance with the terms, exclusions and conditions of the Policy MECON will provide Indemnity for all amounts which you become legally liable to pay in compensation of Personal Injury or Property Loss that happens within the Territorial Limits during the Period of Insurance as a result of an Occurrence which arises in connection with your Business.

With MECON's prior written permission, and included within the applicable limits of indemnity, MECON will also pay:

5.01 legal charges, expenses and costs incurred by you."

114. It was common ground that subject to the application of General Condition 10.08, the policy would indemnify the first and third defendants in respect of their liability, if any, to the plaintiff.
115. The conditions relied upon by the insurer to refuse indemnity under the policy were in the following terms:

"GENERAL CONDITIONS

10.00 Each condition reflects a reasonable requirement of you as a condition or precedent to receiving insurance under the Policy. If you fail to observe these conditions, and such failure increases MECON's exposure to a claim or directly or indirectly exacerbates or causes loss, damage or legal liability, MECON may reduce, or avoid paying, any claim submitted by you.

...

10.08 Risk Management

Without exception, you and your Employees must:

(a) fully comply with manufacturer's instructions

(b) fully comply with all legal requirements and relevant work place authority regulations regarding safety, and maintenance of property, including but not limited to observance of the Occupational Health and Safety Act applicable in your State, and,

(c) ensure that any safety devices (including, but not limited to, load movement and overload indicators), where fitted or required to be fitted, are in place and fully operational at all times, and

(d) take all reasonable steps to prevent incurring any loss, damage or liability."

The third defendant

116. The third defendant, on advice, had pleaded guilty in the Chief Industrial Magistrate's Court to a prosecution for breach of s 10 of the Occupational Health and Safety Act 2001. The breach of s 10 was particularised as including, inter alia, breaches of reg39 of the regulations to the Occupational Health and Safety Act . A statement of agreed facts was tendered in those proceedings. The prosecution arose out of the injury to the plaintiff.
117. A breach of s 10 does not give rise to a statutory cause of action for damages (s32 Occupational Health and Safety Act ) and would not have done under the general law. Mecon did not ultimately submit that breach of s 10 or the plea of guilty established a basis to refuse indemnity.
118. Mecon's primary submission was that the third defendant was not entitled to indemnity as he had breached one or more of conditions 10.08(b), (c) or (d) of the policy.
119. Mecon also submitted that the third defendant was not entitled to indemnity pursuant to the policy as he had breached cl 10.08(b) and/or (d) of the policy in that he had done "residential building work" or "specialist work" in breach of ss 12 and 13 of the Home Building Act 1989 on the site.
120. The third defendant submitted there was no breach of cl 10.08, or the reasonable requirements of that clause; ss 12 and 13 of the Home Building Act 1989 did not provide a basis for denial of liability and no loss had been established by Mecon.

The construction of the policy

121. The policy relevantly provided Mecon would indemnify the third defendant for all amounts which the third defendant was legally liable to pay (insuring provision 5) and but that Mecon may avoid paying the claim if the third defendant failed to observe the nominated conditions and such failure increased Mecon's exposure to a claim, exacerbated or caused the loss damage or legal liability for which indemnity was sought (general condition 10). In the circumstances of this case the question is whether breach of the condition, if established, caused loss or legal liability, there being no evidence Mecon's exposure to a claim was increased or that the liability or loss was exacerbated.
122. Mecon, in the manner in which it particularised breach of condition 10.08(d) appears, correctly, to have accepted that condition 10.08(d) should be read down in order to give effect to the commercial purpose of the policy which was to indemnify the insured against liability for his negligence, a literal interpretation of that condition being repugnant to the commercial purpose of the policy. The reading down of such a provision accords with a long line of authority since Fraser v BN Furman (Productions) Limited [1967] 1 WLR 898.
123. In my opinion, the opening words of general condition 10 should be construed as meaning reasonable as between the insured and insurer having regard to the commercial purpose of the policy, thus leading to a similar reading down of conditions 10.08(b) and (c) as for 10.08(d). The presence of the word "reasonable" in condition 10.08(d) and not in 10.08(b) and (c) does not preclude that construction having regard to the specific words of condition 10 in referring to "each condition" and that "each condition reflects a reasonable requirement of you". Insofar as the opening words of condition 10 are ambiguous they should be construed contra proferentem Mecon.
124. The failure by the third defendant to observe conditions relied on by Mecon would not entitle Mecon to refuse indemnity to the third defendant unless the terms of the condition literally construed (or read down if appropriate) applied and were breached by the third defendant and the failure to observe the condition caused the loss or legal liability for which indemnity is sought.
125. I have had regard to the various authorities to which the parties referred me including The Committee for the Time Being of the Casino Show Society v Norris (1984) 3 ANZ Ins Cas 60-580 and Kim v Cole [2002] QCA 176. In my opinion, the Mecon policy must be construed according to its own terms and, as those terms differ from the cases referred to, the latter are not determinative.

Determination

Breach of condition 10.08(b)

126. The breach of condition 10.08(b) was particularised as a breach of reg 39 of the Occupational Health and Safety Regulation 2001 which, relevantly, required that the controller of the premises must ensure that

"(a) safe access is provided to all parts of a place of work to which a person may require access and from which the person may fall, and

...

(c) walkways are provided and maintained over roofs that are wholly or partly covered by brittle or fragile roofing material, and

...

(e) floors are designed to be safe without risks of slips, trips or falls, with adequate drainage (if necessary) and appropriate floor coverings (if necessary)."

127. The authorities distinguish between access to a place of work and the place of work. In this case the plaintiff was injured at his place of work - Australian Iron and Steel Pty Limited v Luna [1969] HCA 66; (1969) 123 CLR 305 at 310. The alleged breach did not cause the legal liability for which indemnity was sought. Additionally, no breach of the condition, when read down, has been established as the third defendant had taken steps to avoid such a danger and was not indifferent to whether it was averted or not. No basis to refuse indemnity is established.
128. Regulation 39(c), in its terms, is limited to a requirement in respect of "roofs covered with brittle or fragile roofing material". That is not this case. Regulation 39(c) has no application. No basis to refuse indemnity is established.
129. Regulation 39(e), in its terms, is limited to the design of floors. There is no evidence the design of the floor on which the plaintiff fell was deficient. The evidence, such as it was, was to the contrary. The regulation has no application. In any event, I do not accept the effect of the morning dew would have been adverted by drainage or floor coverings envisaged by the regulation. No basis to refuse indemnity is established.

Breach of condition 10.08(c)

130. The breach of 10.08(c) was particularised as a failure to ensure that a safety device such as a barrier, handrail or guardrail around; or complete or adequate cover over the stairwell void which was required to be fitted, was in place and fully operational at all times.
131. Condition 10.08(c) applies to "safety devices". This expression should be given its ordinary meaning in the sense of a contrivance or mechanical device. This construction is confirmed by the words in parenthesis and the concept of being "fitted or required to be fitted". Any ambiguity in the expression should be construed contra proferentem Mecon. Condition 10.08(c) has no application in the circumstances. It provides no basis to refuse indemnity.

Breach of condition 10.08(d)

132. The breach of condition 10.08(d) was particularised as that the third defendant was aware there was no barrier, handrail or guardrail around or a complete or adequate cover over the void at or about the time of the fall, he was aware of the risk of danger that someone could fall through the void and despite being aware of those matters, the third defendant deliberately, recklessly, or with indifference to the normal precautions that should have been taken (being the installation of the safety devices) did nothing to prevent or took measures which were inadequate to avert the risk of danger.
133. Condition 10.8(d), construed literally, would be repugnant to the commercial purpose of the policy as it would deprive the insured of any cover in the circumstances of this case. In Legal and General Insurance Australia Limited v Eather (1986) 6 NSWLR 390 it was held the requirement in an insurance policy that the insured "take all reasonable precautions to avoid or minimise injury, loss or damage..." is satisfied by the insured proving either that he did not recognise that a danger existed or that perceiving its existence he took some action to avoid it and was not indifferent to whether the danger was averted or not.
134. It may be accepted the third defendant was aware of the danger posed by the void. However, the third defendant had retained qualified personnel to perform the work in which the plaintiff was engaged. Action was taken either by those persons or the third defendant himself to cover the void to an extent consistent with its use as a means of access. I accept neither the third defendant nor the contractor was aware that the cover was not satisfactory in that it could give way. It is true that with the benefit of hindsight it is apparent more may have been done by way of provision of a fence or a stronger cover. However, the evidence does not establish indifference on the part of the third defendant as to whether the danger was averted or not. On the contrary, in my opinion there was no breach of this condition properly construed.

Breach of the Home Building Act

135. Mecon submitted that the third defendant was not entitled to indemnity pursuant to the policy as he had breached cl 10.08(b) and/or (d) of the policy in that he had done "residential building work" or "specialist work" in breach of ss 12 and 13 of the Home Building Act 1989 at the site.
136. The Home Building Act contains provisions concerning the residential building industry. It is concerned to ensure the actual building work is performed in a proper and tradesman-like manner and that insurance is available to meet deficiencies in this regard. It is not concerned with matters of building site safety, that is the role of the Occupational Health and Safety Act and the regulations thereunder. The provisions of the Home Building Act are not properly categorised as "legal requirements regarding the safety or maintenance of property" or "relevant workplace authority regulations regarding safety and maintenance of property". Accordingly, condition 10.08(b) has no application.
137. The third defendant did not carry out any actual building work, all of the actual work was done by subcontractors employed by Mr Marroun. Mr Marroun held the relevant licence. He acknowledged his obligation to take reasonable care in respect of his subcontractors. In these circumstances, any supervision by the third defendant was excluded from the definition of residential building work by the Home Building Act regulations. There was no breach of condition 10.08(d) by the third defendant literally construed, and, the more so, when read down so as to have regard to the commercial purpose of the policy. The absence of a certificate was not causative of the legal liability of the third defendant.
138. The third defendant also relied upon s 54 of the Insurance Contracts Act 1984 as confirming its entitlement to indemnity. In my opinion, for the reasons given above, the third defendant has proved that no part of the loss that gave rise to his claim was caused by any of the acts relied upon by Mecon to refuse to pay the claim. Accordingly, Mecon may not refuse to pay the claim - s 54(3) Insurance Contracts Act . Additionally, there was no evidence Mecon was prejudiced as a result of any of the acts relied upon by it to refuse indemnity. However, in view of my earlier findings, it is unnecessary to determine whether s 54(1) of the Insurance Contracts Act has any application.

Conclusion

139. In my opinion, Mecon is liable to indemnify the third defendant in respect of his liability in this matter. None of the conditions identified by Mecon entitle it to avoid paying the third defendant's claim for indemnity.
140. Counsel for the third defendant in his final submissions sought damages for wrongful breach of the insurance contract. He submitted the third defendant had had to fund his own defence in these proceedings and in the circumstances of this case the refusal of indemnity was entirely without warrant. Accordingly, an amount reflective of the wrongful breach of contract by Mecon was claimed by the third defendant to compensate him for the fact that he has been uninsured in these proceedings and put to enormous expense and worry in relation thereto.
141. Mecon's counsel objected to such a claim being pressed after the evidence was concluded and submissions were being made on the grounds he was not prepared to meet it, it had not been particularised and had not been the subject of any evidence. He submitted it would involve splitting the case and having it dealt with at some future time.
142. I accept Mecon's submissions. In my opinion, it is too late for the third defendant to press a claim of the type now suggested.
143. Prima face, Mecon is entitled to a verdict against the first defendant subject to the first defendant's entitlement, if any, to indemnity from Mecon against costs incurred by him. I have refrained from making an order in respect of the second cross claim pending the determination of all questions of costs.

Orders

144. I make the following orders:

1. Judgment for the first defendant against the plaintiff.

2. The plaintiff's claim against the second defendant is dismissed.

3. Judgment for the plaintiff against the third defendant in the sum of $206,382.11.

4. Declare the first cross defendant on the first cross claim is liable to indemnify the first cross claimant in respect of his liability in these proceedings.

5. Judgment for the third cross defendant on the first cross claim.

6. All questions of costs are reserved pending written submissions by the parties. Such submissions to be served by 4.00pm on 14 February 2011 with replies by 4.00 pm on 28 February 2011.

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