(2012) 82 NSWLR 597
Miljus v Watpow Constructions Pty Ltd
New South Wales Court of Appeal
Bathurst CJ, McColl JA, Whealy JA
Judgment Date:
Australia (New South Wales)
Court File Number:
[2012] NSWCA 96 , (2012) 82 NSWLR 597 , 219 IR 298 , 64 AILR 200-494, [2013] ALMD 1805
Party Names:
Damien Miljus, Watpow Constructions Pty Ltd
Legal Representatives:
Solicitors for the appellant: Schreuder Partners.; Solicitors for the respondent: Gadens Lawyers.
Jump to:
Court of Appeal
Miljus v Watpow Constructions Pty Ltd
[2012] NSWCA 96
28 November 2011,
20 April 2012
Negligence — Essentials of cause of action — Duty of care — Particular relationships — Head contractor and employee of sub-contractor — Whether imposition of duty of care on head contractor — Relevant factors
Industrial law — Industrial safety — Statutory regulation — Statutory duty on person carrying out construction work to provide and maintain safe means of access to work site — Scope of duty — Construction Safety Regulations 1950 , reg 73(2)
Regulation 73(2) of the Construction Safety Regulations 1950 provided:
73 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 and for this purpose, without limiting the generality of the foregoing, he shall, subject to Regulation 74:
provide and maintain safe means of access to every place at which any person has to work at any time …”
A building company required concrete to carry out a building development. Accordingly, the building company contracted with an experienced concrete pourer who established a pour site adjacent to the building site. The building company also contracted with a building products supplier for the supply of concrete to the pour site. The building products supplier then sub-contracted with a concrete delivery company to supply the concrete to the pour site. Whilst attempting to deliver the concrete to the pour site, an employee of the concrete sub-contractor lost control of the delivery vehicle and it toppled over on a narrow public road some distance from the building site, causing the employee to suffer physical and psychiatric injuries. The employee, having unsuccessfully sued the building company in negligence, appealed against that decision.
Held (dismissing the appeal): A head contractor on a building site owed no duty of care to an employee of an independent contractor working at the site where the employee was injured in an accident which occurred at a position relatively well removed from the site. ([1]; [2]; [69]–[70], [93], [98])
(2) The obligation imposed by reg 73(2) of the Construction Safety Regulations 1950 only applied once a person was at a work site and could be properly said to be involved in the construction process. ([1]; [2]; [111]–[114])
Consideration of principles relevant to the duty of care owed by a builder or contractor who has possession of a building site.
The following cases are cited in the judgments:
ACI Metal Stamping and Spinning Pty Ltd v Boczulik (1964) 110 CLR 372
Akins v National Australia Bank (1994) 34 NSWLR 155
Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26 ; (2009) 221 CLR 568
Australian Iron & Steel Pty Ltd v Luna (1969) 123 CLR 305
Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479
Ballina Shire Council v Daley [1991] NSWCA 18
Dovuro Pty Ltd v Wilkins [2003] HCA 51 ; (2003) 215 CLR 317
F & D Normoyle Pty Ltd v Transfield Pty Ltd t/as Transfield Bouygues Joint Venture [2005] NSWCA 193 ; (2005) 63 NSWLR 502
Ilvariy Pty Ltd trading as Craftsman Homes v Sijuk [2011] NSWCA 12
J Blackwood & Son Steel & Metals Pty Ltd (trading as Horans Steel) v Nichols [2007] NSWCA 157 ; (2007) 165 IR 76
Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11 ; (2011) 243 CLR 361
Leighton Contractors Pty Ltd v Fox [2009] HCA 35 ; (2009) 240 CLR 1
Miljus v CSR Ltd (No 4) [2010] NSWSC 1325
Nowlan v Marson Transport Pty Ltd [2001] NSWCA 346 ; (2001) 53 NSWLR 116
Phoenix Commercial Enterprises Pty Ltd v City of Canada Bay Council [2010] NSWCA 64
Portelli v Tabriska Pty Ltd [2009] NSWCA 17
Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16
Sydney Water Corporation v Abramovic [2007] NSWCA 248 ; (2007) Aust Torts Reports 81–913
An employee of a sub-contractor to a building company unsuccessfully brought proceedings against the company for negligence. He appealed against that decision.
BJ Gross QC and CJ Callaway, for the appellant
SG Campbell SC, MK Scott and BCA Bradley, for the respondent.
Judgment reserved
20 April 2012
I agree with Whealy JA’s reasons and the orders his Honour proposes.
I agree with Whealy JA’s reasons and the orders his Honour proposes.
This is an appeal against a decision of Davies J (the primary judge) entering a verdict for the defendant in a personal injuries claim arising out of a motor vehicle incident. Although his Honour found for the defendant in the proceedings, he contingently assessed damages in the event that his finding on liability were overturned. The appellant seeks a new trial on the issue of damages based on asserted errors in the primary judge’s contingent findings.
Factual background
The appellant was employed by a company called Edensor Transport Pty Ltd (Edensor). Edensor was a company of which the appellant and his father were the two shareholders and directors. Edensor was in the business of concrete delivery. It had its own vehicle suitable for that purpose. The respondent, Watpow Constructions Pty Ltd (Watpow), is a building company and was engaged by the owner of a residential property at Rignold Street, Seaforth, to carry out a major building redevelopment including, at the end of the project, the construction of a swimming pool.
CSR Ltd (CSR) is a prominent Australian building products supplier. As part of its business, it supplies work sites with concrete. The respondent contracted with CSR to enable concrete to be supplied to the building site at Seaforth. CSR then sub-contracted Edensor, one of its contract drivers, to transport the concrete from its depot. At no time did the respondent directly engage the appellant. At all material times, the appellant was employed by Edensor.
The usual arrangements under which the appellant worked were as follows. The appellant would drive to the particular CSR depot to which he had been allocated and would there be given his first load of concrete, together with the address to which it was to be delivered. Subsequently, by means of a two-way radio system, he would be informed of the next load and where it was to be collected and delivered. On any one day, he might deliver between three and ten loads. On the occasion of the appellant’s injury the subject of these proceedings, the pick-up depot was situated in Brookvale.
Separate to the respondent’s contract with CSR for the supply of concrete, Watpow engaged a company called Pump Force Concrete Pumping (Pump Force). Pump Force was experienced in relation to concrete pours on building sites. It provided the hopper into which the concrete was poured and subsequently controlled the pumping towards the building site of the concrete. In relation to the project at Seaforth, Pump Force’s pump was located on Rignold Street itself adjacent to the building site.
Rignold Street runs in a westerly direction at right angles from Boronia Lane. It has a continuous downhill slope as it travels westward until it reaches a fork in the road about 80 to 100m west of Boronia Lane. At a point, perhaps about 50m from Boronia Lane, it veers to the left and then turns more sharply to the right at what appears to be its steepest downhill section. The land generally falls away to the right hand or northern side of the roadway. By the right hand bend, there was a fairly steep embankment into a gully on the right hand side of the road. On the left hand side, the southern side of the road, there was an embankment of varying height above the road level.
At the point where Rignold Street came to the fork, a lower road proceeded on the northern side further down into the valley where three other properties were situated. The left hand fork went in a slightly south westerly direction up a small incline to the front of the property at 8 Rignold Street. It was in that precise position that the concrete pump was located on the road outside the property. There was reasonably dense foliage on either side of the roadway, as the photographs demonstrate. They also show that the width of the road was not very much greater than the width of the appellant’s truck, particularly taking into account the side vision mirrors that extended beyond the body of the truck.
As will be seen, the building work had been under way for many months by 20 March 2001. By that date, many trucks, some carrying concrete, had safely traversed Rignold Street to the site. Indeed, on the morning of the accident, a previous delivery of CSR concrete to the site had been uneventfully completed.
The accident
The accident that gave rise to the proceedings occurred on the morning of 20 March 2001. The appellant had been directed by CSR to deliver five cubic metres of concrete to the site. As I have said, this was CSR’s second delivery of concrete to the site that morning. The appellant had never been to the site prior to his delivery. CSR had the responsibility of loading his vehicle back at the depot. There was no doubt that the amount of concrete loaded onto his truck was that which had been agreed in pre-contractual negotiations between CSR and the respondent.
The appellant initially had difficulty locating Rignold Street and radioed the allocator at CSR’s Brookvale depot for assistance. He was directed to speak with the CSR driver who had already made a delivery to the site earlier that morning. The CSR driver advised the appellant to stick to the upper side of the street. Once on Rignold Street, the appellant did not speak to anybody at the site, nor did he speak to any representative of the respondent or of Pump Force. Before entering Rignold Street, the appellant climbed out of his truck, walked down the street and observed its condition and surrounding topography. It is clear, as the trial judge later accepted, that, based on this assessment, the appellant formed the view that, although there were difficulties, he was capable of successfully reversing down the road. The appellant thereupon reversed his truck down the access road. His father, who had until that point been a passenger in the vehicle, stepped out and assisted him in the navigation process. However, in the course of reversing, the appellant lost control of the vehicle. It toppled over onto its left side and fell at least partly into the adjacent gully. The accident occurred on a public road some distance removed from the building site. As a result of the accident, the appellant suffered physical and psychiatric injuries.
Relevant procedural history
This litigation has had an unfortunate history. The original statement of claim was filed in the District Court on 2 March 2004. CSR was named as the first defendant and Watpow as the second defendant. Eventually a number of cross-claims were filed adding new parties that included Edensor as well as the motor vehicle and workers compensation insurers of Edensor. The first hearing in the District Court commenced on 26 September 2006. On the second day of the hearing, the appellant terminated the instruction of his solicitors and counsel. The hearing was vacated.
The appellant obtained new solicitors and the matter was transferred to the Supreme Court. There was extensive case management before the matter was listed before the primary judge for hearing on 24 May 2010. There were six days of hearing before CSR and Watpow agreed to have their cross-claims against Edensor dismissed. This resulted in an agreement with the two insurers for those cross-claims to be dismissed also.
On the seventh day of the hearing before the primary judge, the appellant and CSR reached an agreement that there should be judgment for CSR in the proceedings. Initially, the respondent objected to the entry of this judgment because of the cross-claim it had against CSR. However, later that day, the cross-claims between CSR and the respondent were dismissed by consent with no order as to costs. Consequently, on the principal claim, judgment was entered in favour of CSR and the proceedings continued against the respondent alone.
I shall next turn to examine the findings made by the primary judge.
Primary judge’s decision
His Honour, in a thorough and detailed analysis, gave consideration to each aspect of the case. First, he had to decide how it was the accident happened. He did not accept that the brakes of the vehicle failed but, on the other hand, he was not prepared to find that the accident was the fault of the appellant. At [71]–[73] of the principal judgment (Miljus v CSR Ltd (No 4) [2010] NSWSC 1325), his Honour said:
“[71] Having found that the brakes did not fail, and that therefore responsi­ bility for the accident was not principally with the plaintiff, whatever other duty and breach may be found, it is not necessary to find exactly how the accident happened. What can clearly be found is that the roadway was a narrow one, with a poor surface and unsatisfactory camber, particularly on the sharper curve towards the north at about the place the truck came to roll over, and in circumstances where the narrowness of the road was aggravated by foliage which had grown up on both sides of the road.
[72] It may be that the truck lost traction either because it was very heavily laden, because some of the wheels left the surface temporarily, or for some other reason. The road was undoubtedly a difficult one down which to manoeuvre a vehicle as large as the plaintiff’s truck.
[73] I have no doubt that the state of the road was a materially contributing factor to the accident and injuries sustained by the plaintiff. The question is whether, given that the road was a public road in respect of which the local council was the Roads Authority (s 7(4) Roads Act 1993) with the responsibilities upon it as the local authority that that entailed (cf s 146 Roads Act), the defendant owed a duty of care to the plaintiff in respect of that road and, if so, whether it breached that duty.”
The primary judge then turned to consider the critical question in the case, namely whether the respondent owed a duty of care to the appellant in all the circumstances. His Honour did so against the background that there were ultimately 16 particulars of negligence alleged against the respondent. In substance, they complained about the need imposed on the appellant to deliver the concrete to the site along Rignold Street in its poor condition: Miljus v CSR Ltd (No 4) at [10]. His Honour also identified one specific particular of negligence which asserted a breach of reg 73(2) of the Construction Safety Regulations 1950 in failing to provide and maintain safe means of access. (That particular had been added following an unsuccessful application by the appellant to amend his statement of claim to plead a breach of statutory duty. Consequently, the appellant’s position was that he relied upon the Regulation simply as an instance of negligence, exemplified by a failure to act in accordance with the Regulation. It did not operate as a cause of action for breach of statutory duty in the proceedings.)
His Honour identified, on the duty question, that the principal argument advanced by the appellant was that there was a duty on the respondent to provide and maintain the roadway as a safe means of access. The critical reason advanced was that the concrete pump itself was on the roadway immediately outside and adjacent to the building site. The appellant’s essential allegation as to what should have been done on the part of a reasonable builder/head contractor, in the position of the respondent, was this: Watpow should have located the concrete pump, or a second concrete pump as was done after the accident, at a point on the roadway closer to Boronia Lane to obviate the need for trucks to be driven down the roadway. It was also suggested, less forcefully (in the light of the fact that this was really a matter for CSR), that smaller trucks might have been employed for the delivery of the concrete.
His Honour also noted that the appellant, in maintaining his argument about duty of care, had drawn attention to the Code of Practice for pumping concrete. The plaintiff accepted that the Code did not advise or dictate the extent or scope of any duty. However, the plaintiff maintained before the primary judge, as he did on this appeal, that the Code enlightened as to what might be regarded as good industrial practice in a situation where concrete delivery trucks had to get access to a building site. It also threw light, the appellant maintained, on the expectation as to what a reasonably competent and careful builder would do: Miljus v CSR Ltd (No 4) at [78].
The primary judge found that while a failure on the part of a builder or contractor to have regard to reg 73(2) or cl 2 of the Code of Practice might, in an appropriate case, be some evidence of a breach of a common law duty, he did not consider that either provided a basis for imposing a new duty on the builder in relation to safe access beyond any duty that the law already imposed: Miljus v CSR Ltd (No 4) at [79].
Next, his Honour had regard to a number of decisions relied upon by the appellant. These were claimed to support the extension of the respondent’s duty as an occupier to provide a safe means of access to land outside the premises over which a defendant had care and control. The appellant placed particular reliance on ACI Metal Stamping and Spinning Pty Ltd v Boczulik (1964) 110 CLR 372, Australian Iron & Steel Pty Ltd v Luna (1969) 123 CLR 305, Ballina Shire Council v Daley [1991] NSWCA 18, and Portelli v Tabriska Pty Ltd [2009] NSWCA 17.
In the ultimate, his Honour found, after consideration, that none of these cases provided any real assistance to the appellant. His Honour was more relevantly focused upon the circumstances which might throw light on a relationship, if any, between the appellant and the respondent. In that regard, his Honour noted that the appellant was an employee of Edensor, albeit that it was his own company. In turn, Edensor was an independent contractor to CSR. The concrete supply company had engaged Edensor as a sub-contractor to deliver its concrete to various sites around Sydney. By contrast, CSR and the respondent had a precise contractual arrangement for the delivery of concrete to the building site. In those circumstances, his Honour said he found it difficult to characterise either the plaintiff or Edensor as an independent contractor to the respondent. Watpow at no time engaged the services of Edensor or the plaintiff: Miljus v CSR Ltd (No 4) at [81].
Against that background, his Honour examined the decisions of the High Court in Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 and Leighton Contractors Pty Ltd v Fox [2009] HCA 35 ; (2009) 240 CLR 1.
His Honour also called in aid the 2007 decision of this Court in Sydney Water Corporation v Abramovic [2007] NSWCA 248 ; (2007) Aust Torts Reports 81–913. Although this case was decided before Leighton Contractors v Fox, Basten JA had (at [98]) suggested a number of criteria that might be regarded as relevant in examining the nature of a duty, and indeed the existence of a duty, in circumstances where multiple contractors were engaged on or in relation to a building site. The primary judge thought that the application of those criteria, and in addition the distinctions made in Leighton Contractors v Fox, suggested the existence of a duty, not as between the appellant and respondent in the circumstances of this case but, rather, as between CSR and the appellant.
In the course of this examination, the primary judge had regard to a great deal of the evidence in the proceedings before him. It included evidence given by Mr David Watson, the director of the respondent. Mr Watson was, the primary judge said, qualified as a cabinet-maker, carpenter and a licensed builder. He had no expertise in the driving of concrete trucks nor any specialised knowledge in the operation of concrete pumps or their placement. He had a requirement for a considerable quantity of concrete for the job he was undertaking at Seaforth. He gave evidence that he asked representatives of the concrete company to come down and have a look at the site. One of those representatives was a Mr Mark Watson. The CSR representatives traversed the site with Mr David Watson. They examined the suggested spot adjacent to the premises where the sub-contractor, Pump Force, had suggested that the concrete pump should be placed to accept delivery from the concrete trucks. The three men inspected Rignold Street and walked its length up to Boronia Lane. Mr David Watson, in the course of these pre-contract negotiations with CSR, identified Rignold Street as the access way to the building site. He specifically asked Mr Mark Watson whether he saw any problems with getting the trucks to the site from Boronia Lane along Rignold Street. He was assured by CSR that they could get the concrete truck down there, no problem.
His Honour reiterated that either Mr Mark Watson, or the other gentleman with him, had assured Mr David Watson that there would be no problem with the access. They did however say that, because of the nature of the incline, they would only put five metres of concrete in the truck rather than seven or eight cubic metres, which was the maximum capacity. This suggestion was made by them so as to prevent the concrete slopping out the back.
There was further evidence before his Honour that, prior to the day of the accident, there had been a great number of trucks (apart from concrete deliveries) delivering items of one kind or another to the site. The construction work had, by that time, been in progress for many months. Indeed, the evidence had suggested that some 70 trucks had, prior to the accident, delivered concrete to the site without mishap.
His Honour referred to evidence that Mr Mark Watson from CSR had visited the site around 15 March 2001. The occasion of this visit was that a complaint had been made by some of the drivers that the branches of overhanging foliage in Rignold Street were impeding drivers’ vision in the use of their side and rear view mirrors. Mr Mark Watson asked Mr David Watson if the branches of the overhanging foliage could be trimmed back for this reason. There was evidence that trimming had taken place and that Mr Mark Watson came down on 19 March to check that the trimming had been done.
The primary judge said that the whole of the evidence pointed to CSR as perceiving itself as responsible for the drivers of the trucks and their safety, and acting accordingly: Miljus v CSR Ltd (No 4) at [85]. The evidence, he said, tended to show that CSR also saw itself in a position of control in that regard. Indeed, after the accident, two representatives of CSR (Messrs Roseworn and Watson) came to see Mr David Watson. They informed him that the concrete trucks should not henceforth be taken down Rignold Street past the corner. The result was that the respondent, and its sub-contractor Pump Force, in relation to the few remaining deliveries required under the contract, were required to install a second concrete pump on the straight section of Rignold Street above the corner where the accident happened, and to link it via piping to the initial concrete pump adjacent to the building site: Miljus v CSR Ltd (No 4) at [85].
His Honour then turned his attention to the authorities which I have mentioned above (par [22]) which were said to provide support for the notion that the responsibility for providing a safe means of access could extend beyond the land owned or occupied by the builder. These cases were all distinguishable, in his Honour’s view. They did not, he thought, support the contention advanced on behalf of the appellant. ACI Metal Stamping was based essentially on the relationship of employer and employee as between the plaintiff and the defendant. Australian Iron & Steel Pty Ltd v Luna, in the majority decision, determined that the statute (s 40 of the Factories, Shops and Industries Act 1962 (repealed) which required that there be a safe means of access to any place of work) depended for its operation on the maintenance of the distinction between the place at which the work was to be done and the means of access to that place. The primary judge held that the majority decision in Luna did not advance the appellant’s position at all.
Ballina Shire Council v Daley, his Honour held, was distinguishable on the basis that there the defendant was not only the employer of the plaintiff but also was the local authority carrying out work on a road within its local government area. His Honour noted, by contrast, that the placement of the pump on the roadway in the present matter was entirely incidental to the building work which was being carried on at 8 Rignold Street itself.
Having reviewed the authorities and the submissions made, his Honour said (at [97]–[99]):
“[97] None of these cases provides any support for the submission that a builder occupying a building site owes any duty to the independent contractor of a person with whom the builder has a contractual relationship for the delivery of goods in respect of the safety and maintenance of a public road over which that independent contractor must travel to get to the site occupied by the builder. Certainly, the builder had no obligation to repair the road or make it or its environs safe. Indeed, it had no lawful right to do anything in respect of the road. The care of the road was the Council’s responsibility.
[98] What seems to be being argued by the plaintiff, however, is not so much that the builder should have made the road safe but should, by devising a different method of carrying out the work, have avoided the need for the plaintiff to be put at risk by driving down the roadway. It was not made clear but, presumably that would satisfy the standard imposed by regulation 73 because the means of access to, say a second concrete pump higher up the road, would not be unsafe.
[99] In my view there was no such duty on the part of the builder. None of the cases supports such a duty. Even if this case concerned a breach of statutory duty, namely, a breach of regulation 73(2), I do not consider that a public roadway over which the builder had no control could be considered to be a means of access for the purpose of regulation 73. A fortiori, where regulation 73 only informs a standard of a common law duty of care, I do not consider that there is any duty of care cast upon the builder with respect to the public roadway to require him to block the public roadway by locating a second pump further away from the property.”
This last observation was no doubt a reference to the evidence which demonstrated that, once the second pump and piping had been put in place, it was necessary to block Rignold Street for several hours a day, thus preventing access and egress to the other three residences further down the street.
The primary judge then gave detailed consideration to another aspect of the case. This was the evidence adduced as a result of the cross-examination by Mr Gross QC of Mr David Watson. The witness had made statements apparently accepting that it was his duty as a reasonable builder to plan for safety in relation to vehicles getting access to a site, rather than just waiting for complaints to emerge. Ultimately, despite his rather generous concessions, he denied that he should have been more proactive about anticipating problems at the present site and addressing them.
The primary judge accepted that, to some degree, Mr Watson had seen the respondent as having some general responsibility for the safety of the roadway. For example, there was evidence that the respondent had filled in potholes from time to time. The evidence suggested, the primary judge said, that he was doing this for the sake of his company’s reputation or to keep the peace with neighbours or because he thought he had a moral responsibility to do so. His Honour said that the evidence, as a whole, provided only limited support for the notion that the respondent perceived it had a responsibility for the roadway. His Honour, however, concluded that that issue was ultimately one of law. In particular, the question as to whether a duty arose was a strictly legal one. It could not be resolved by Mr Watson’s concessions.
In that regard, his Honour gave consideration to a number of authorities that established that, where a plaintiff had relied expressly or impliedly on what had been the practice of a defendant implemented as a self-imposed obligation, liability had been imposed. Ordinarily, this was a situation of reliance in cases where public authorities were involved. In any event, his Honour held that there was no evidence of any reliance by the appellant on any practice of the respondent, or indeed any reliance on the respondent at all. The appellant’s evidence had been that when he walked down the road to inspect it before driving the truck down, he did not speak to anybody at the building site. He formed his own conclusions, determining that, although there were difficulties, he was capable of driving down the road. The only person on whom he had relied was the CSR truck driver who had delivered an earlier load immediately prior to the appellant’s attendance at Rignold Street. This driver had told the appellant to reverse down the road and stick to the upper side of the road: Miljus v CSR Ltd (No 4) at [107].
His Honour’s ultimate conclusion was that, in the absence of any reliance by the appellant on anything said or done by the respondent in relation to the roadway, the fact that Mr David Watson perceived that, in some way the respondent had a degree of responsibility for the roadway, did not create a duty of care that was not otherwise imposed by the law. His Honour added (at [109]):
“[109] It is to be noted in any event that the defendant saw its responsibilities as being associated with what it ought to do to improve certain aspects of the physical features and surrounds of the road. The defendant did not acknowledge that it had any responsibility to devise a different system of work which might have involved the placement of a second pump higher up the road. It has not been shown that the accident was caused by either of the matters for which the defendant perceived it had responsibility, namely trimming the foliage and filling some potholes.”
The primary judge, in the event that he were wrong in his conclusion as to the absence of a duty of care, next turned his attention to the issue of breach. Here he held that, if there were a duty, in all the circumstances a reasonable person in the defendant’s position would have taken precautions. As to this his Honour said (at [115]):
“Perhaps the most obvious precaution was what the plaintiff has suggested in the present case, namely, to establish a second pump on the straight section of the road to obviate the need for the vehicles to reverse around the difficult cornered section of the roadway. When the evidence established that there were only two or three other properties further down Rignold Street, and the pumps did not have to be in place on any permanent basis or for any prolonged period, there was no reason that arrangements could not have been made at minimal inconvenience to those residents as appears to have taken place after the accident.”
In those circumstances, his Honour considered that if the respondent did owe a duty to the appellant, it had breached that duty, specifically by failing to ensure that the trucks did not need to proceed beyond the corner of the road to deliver the concrete.
His Honour rejected the proposition that the appellant had been guilty of contributory negligence, and then turned to the issue of damages. I shall return to those issues at a later point in these reasons.
The appellant’s arguments
The appellant’s arguments on liability may be distilled into the following propositions.
First, Mr Gross placed special attention on the actions taken by the respondent after the accident. These had involved Pump Force setting up a second pump further up the roadway and the placement of consequential piping directed back to the initial pump adjacent to the building site. While this new system had the effect of blocking the roadway for the time it was in operation, it was only in use for a relatively brief period of time, having regard to the fact that the number of concrete deliveries required to complete the project was limited. It was, however, the failure to take these steps at the outset of the contract between CSR and the respondent, Mr Gross argued, that constituted the breach. The circumstances of these subsequent actions also pointed to the existence and scope of a duty of care, a duty to exercise reasonable care to provide a safe manner of delivery of concrete to the site. This duty, Mr Gross argued, was imposed upon the respondent.
Secondly, Mr Gross argued that the circumstances here showed that the respondent had retained a special controlling role as head contractor with supervisory obligations to avoid unreasonable risk of injury to truck drivers such as the plaintiff.
Thirdly, Mr Gross argued that the primary judge had distracted himself by focusing on essentially irrelevant matters such as concentration on obligations arising under the Roads Act 1993, the lack of legal ability for the head contractor to upgrade the public road, the contractual arrangements between CSR and the respondent and, finally, the absence of a contract between Edensor and the respondent.
Fourthly, Mr Gross submitted that the obligation imposed by reg 73(2) of the Construction Safety Regulations, although simply relied on here as a particular of negligence, gave content to the existence and scope of a duty of care in a situation such as the present. The regulation, if applicable, imposed an obligation on the respondent to devise a different method of transporting concrete to the building site so as to avoid putting the appellant at risk of injury.
Fifthly, Mr Gross argued that the Code of Practice, on which he had placed some reliance at trial, was available to give content to the existence and scope of a duty of care even though it did not literally apply to the present circumstance.
The respondent’s arguments
Mr Campbell SC submitted that the trial judge’s approach had been perfectly correct in all respects on the issue of the existence of a duty of care. In particular, he reminded this Court that the Code of Practice had never been pleaded. Indeed, when complaint was made at trial that this was not a matter that was included in the pleadings, the appellant had disavowed reliance upon it for that purpose. Breach of the Code was not alleged and Mr Gross had made it plain to the primary judge that the appellant was simply setting the stage for what the roles of different people on the building site are. Additionally, Mr Campbell pointed out that s 46(2) of the Occupational Health and Safety Act 2000 made it clear that liability does not attach in any civil or criminal proceedings for breach of a Code of Practice.
Mr Campbell also submitted that the suggested breach of reg 73(2) of the Construction Safety Regulations did not apply to the present case. In any event, whether it did or not, the suggested breach was simply pleaded as a particular of negligence. Mr Campbell reminded this Court that, while regulations or the provisions of a statute might inform the existence of a common law duty of care and enlighten as to its scope, the High Court has said that all duties of care are to be discharged by the exercise of reasonable care. They do not impose a more stringent or onerous burden: Leighton Contractors v Fox.
Mr Campbell argued that the primary judge had not distracted himself by considering the Roads Act or the contractual situation between the various parties. All these matters, though not determinative, were relevant to the case sought to be made by the appellant.
Finally, on the liability issue, and particularly in relation to reg 73(2), Mr Campbell submitted that there was a distinction to be drawn between activities occurring at a place of work and the task involved in getting to the place of work. In that regard he placed reliance on Australian Iron & Steel Pty Ltd v Luna. Mr Campbell argued that the appellant here was, in truth, at his place of work from the time he left Brookvale to commence his journey to Seaforth. In other words, he was at his place of work while he was in his truck delivering concrete to CSR customers. Senior counsel placed reliance on J Blackwood & Son Steel & Metals Pty Ltd (trading as Horans Steel) v Nichols [2007] NSWCA 157 ; (2007) 165 IR 76.
Two preliminary matters
Before coming to the resolution of the issues, it is necessary to dispose of two preliminary matters. The respondent has taken exception to the filing by the appellant of a document dated 16 November 2011 entitled (in part) Appellant’s Narrative. Mr Campbell has argued that the Court should not permit this late challenge to the primary judge’s findings of fact. In my opinion, reliance on this challenge should not be permitted. I shall state my reasons briefly.
First, the notice of grounds of appeal and the proposed amended notice of grounds of appeal had not identified any substantial challenges of fact to the findings made by the primary judge. By contrast, the document in contest purports to be a submission made pursuant to r 51.36(2) of the Uniform Civil Procedure Rules 2005. Secondly, the Appellant’s Narrative was filed almost five months after the appellant’s written submissions and without the leave of the Court. This matter was set down for hearing at a listing hearing on 7 June 2011, after numerous pre-trial directions hearings. The hearing date allocated was 28 November 2011. The “Appellant’s Narrative” was not filed until 16 November. It was not served on the respondent until 17 November 2011. Reliance on this document would have changed the course of the appeal significantly. Thirdly, no explanation has been given for the circumstances which led to this very significant departure from the Rules.
It is contrary to the interests of justice that the appellant now be permitted to raise these challenges. The prejudice to the respondent and the administration of justice is manifest.
The second preliminary matter relates to an order sought by motion filed on 28 November 2011 seeking to amend the notice of appeal in accordance with a further amended notice of appeal attached to the appellant’s written sub­ missions and itself dated 16 November 2011.
This document appears in the Orange Appeal Book filed 17 November 2011. The precise amendment which is opposed appears at Orange AB 85 in these terms:
“[15] His Honour erred in rejecting the tender of the report of Dr Dinnen, consultant psychiatrist, dated 12 June 2008.”
The facts regarding this matter may be briefly stated. The primary judge gave a preliminary ruling on 21 June 2010. This related to the tender by the appellant of a number of medical reports where it was not intended to call the author of any of those reports. There were a considerable number of reports involved in this exercise. Objection was initially taken by the respondent on a number of bases. First, some reports were said not to comply with the Expert Witness Code of Conduct and otherwise did not clearly state the assumptions of fact made, nor the reasons for opinions expressed as required by the Code. Secondly, in some cases, the author of a report had provided opinions beyond the specialty and qualifications possessed by him. Thirdly, it was claimed that, for case management reasons, the particular report should not be admitted into evidence.
The primary judge explained in his interim decision that the procedural history of the tender of these medical reports had been quite unsatisfactory. Ultimately, as he recorded, some type of agreement had by then been reached between the parties as to the manner in which he should deal with the reports. Counsel for the respondent was required to provide a schedule of the reports objected to, identifying the precise basis or bases upon which objection would be taken. The primary judge would then provide preliminary rulings on the objections. If, after those preliminary rulings were given, the parties wished to re-list the matter to argue any aspect, they were invited to do so and the outstanding matters could then be debated on a fully contested basis. The parties indicated to the primary judge that they would not require reasons for his preliminary rulings.
Nevertheless, his Honour decided that he would give brief rulings to assist the parties to determine whether they would wish to argue any of the matters further. His Honour in his interim decision expressly noted that he had not heard any detailed submissions from the appellant to justify the admission of the reports into evidence. It was for that reason that he decided he would give brief reasons to assist the plaintiff in that regard. He expressly reserved the appellant’s rights to re-agitate any of the matters on which his preliminary rulings were given.
His Honour then addressed some 40-odd reports, including one by Dr Dinnen of 12 June 2008. In that regard his Honour said (at 35):
“Report of Dr Dinnen of 12 June 2008 — Dr Dinnen is a psychiatrist. This report is a medico-legal report, the plaintiff having been sent to him by his present solicitors. Objection is taken to this report on case management grounds. This is likely to be because Dr Dinnen was not involved in the conclave and did not give concurrent evidence with the other psychiatrists. I would not be prepared to admit his report.”
His Honour had earlier referred to the fact that, with the concurrence of the parties, two psychiatrists had prepared a joint report. They had given concurrent evidence which discussed in detail the appropriate diagnosis of the appellant from a psychiatric point of view. In his ultimate finding, at the conclusion of the trial, the primary judge found that the joint report of the psychiatrists Dr Robert Lewin and Dr Samir Benjamin agreed that the appropriate diagnosis for the appellant was a chronic adjustment disorder. They also agreed that there appeared to have been a degree of personality decompensation. The psychiatrists jointly accepted, it seems, that the motor vehicle accident of 2001 had precipitated the plaintiff’s psychiatric condition. They thought the plaintiff was fit to work on a half-time basis at the time of their report of 30 April 2010. They also thought that, with the passage of time following the conclusion of litigation, the plaintiff would ultimately be able to move to full-time work, although not, obviously enough, in his previous occupation as a truck driver.
At the conclusion of his interim decision on 21 June 2010, his Honour directed the parties to contact his Associate to fix a time to resolve any issues outstanding as a result of his preliminary judgment.
It is common ground that no application was made by the appellant thereafter in relation to the tender of Dr Dinnen’s report.
The first time it emerged as an issue in these proceedings was in the further amended notice of appeal.
In my opinion, the appellant should not be allowed to rely on the amended ground of appeal No 15. First, it is correct, as Mr Campbell argued, that the primary judge did not reject the report of Dr Dinnen. His ruling, merely on a preliminary basis, was that he would not admit the report, subject to the appellant’s rights to argue a contrary position. The simple fact is that the appellant never sought to make any further submissions and did not seek to tender that report at the hearing.
Secondly, Dr Dinnen’s report, in any event, appears to offer the same diagnosis as that identified in the joint report accepted by the primary judge at the hearing. While the primary judge rejected the appellant’s claim for ongoing economic loss on the basis of the joint opinion and his preferred view of the orthopaedic evidence, it does not seem that this report takes the matter any further.
To the extent that the motion might be said to be, in truth, an application to this Court to receive further evidence pursuant to s 75A(7) of the Supreme Court Act 1970, the appellant has not demonstrated special grounds for permission to do so: Akins v National Australia Bank (1994) 34 NSWLR 155; ; Nowlan v Marson Transport Pty Ltd [2001] NSWCA 346 ; (2001) 53 NSWLR 116; ; Phoenix Commercial Enterprises Pty Ltd v City of Canada Bay Council [2010] NSWCA 64 at [27] per Spigelman CJ.
For these reasons, I do not consider it to be in the interests of justice to allow this particular amendment to the notice of appeal. There was a second minor amendment to Ground 2 which was not opposed by the respondent. The need for the amendment arose simply because of a typographical error, and that amendment (deletion of the word not) is allowed.
Resolution of the issues on liability
This appeal involves on its face an issue that is commonly contested in workplace accident litigation. The question which commonly arises is this: to what extent is a head contractor responsible for an injury that occurs to the employee of an independent contractor working on the site? Again, a similar question may arise in connection with an injury sustained by an independent contractor engaged by another contractor further up or down the scale in relation to the complex of activities on the building site.
The present case has an unusual feature, however, as the employee of the delivery contractor (whose engagement was with a manufacture and supply company) was injured in an accident which occurred at a position relatively well removed from the site. It was an accident which, on initial impression, had nothing to do with the organisation and coordination of workplace activities on the building site itself.
In Stevens v Brodribb Sawmilling Co Pty Ltd (at 31), Mason J explained that if an entrepreneur engages independent contractors to do work that might as readily be done by employees, in circumstances in which there is a risk to them, or their employees or sub-contractors, of injury arising from the nature of the work and where there is a need for direction and coordination of the various activities being undertaken, the entrepreneur will come under a duty to prescribe a safe system of work. It is difficult to see, it must be said, that this principle is engaged in circumstances where a delivery truck bringing goods for the project runs off the road on its way to the building site. In view of the appellant’s submissions, however, it is convenient to commence the analysis of the liability issues in this matter through the prism of the Stevens v Brodribb legal construct.
The general position in relation to the complex of relationships on a building or development site has recently been made clear by the High Court of Australia. The relevant principles, as I see them, may be shortly stated as follows.
The general duty of care owed by a builder or contractor who has possession of the building site is that of an occupier. It owes a duty to persons coming onto the site to use reasonable care to avoid physical injury to them where the risk of that injury is foreseeable: Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 at 488; ; Leighton Contractors v Fox at [48].
This duty, in circumstances where the occupier engages an indepen­ dent contractor to carry out aspects of its enterprise, does not give rise to a duty of care towards an employee of the independent contractor akin to the duty of an employer to his employee: Leighton Contractors v Fox at [48]:
“the relationship between principal and independent contractor is not one which, of itself, gives rise to a common law duty of care, much less to the special duty resting on employers to ensure that care is taken.”
In the circumstances outlined by Mason J in Stevens v Brodribb, the duty to take reasonable care may, however, extend to responsibilities involved in the system of work utilised by the independent contractor. Whether this is so or not will depend on an investigation of the facts and circumstances pertinent to the enterprise being considered. As Mason J said in Stevens v Brodribb (at 31):
“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.”
Where, however, the builder/occupier has engaged the services of an independent contractor whose task it is to control its employee’s systems of work without supervision by the occupier, there may, depending on the overall circumstances, be no liability imposed on the builder for a failure by the independent contractor to control its own system of work. In Stevens v Brodribb, Brennan J said (at 47–48):
“The duty to use reasonable care in organizing 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 minimize 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 circum­ stances 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 organized 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.”
In my opinion, the application of these clear principles to the facts as found by the primary judge inevitably leads in this case to a conclusion that the duty of care propounded by Mr Gross simply did not arise. The primary judge’s analysis was both orthodox and correct. A fortiori, if no such duty, as proposed, arose in relation to the coordination of the activities on the project site, it must be the case that no such duty arose or existed in relation to an activity away from the site.
A convenient and relevant starting point, although not finally determinative of the matter, is the contract between CSR and the respondent. His Honour was correct to have regard to these arrangements. There was, of course, no contract between the respondent and Edensor; nor between the respondent and the appellant. Part of the CSR contract was the concrete delivery docket issued in relation to each delivery. This document noted that the sale was subject to CSR construction materials terms and conditions of sale. The delivery docket contained a number of the general conditions of supply, although not all. One of those was general condition 9, which provided as follows:
“Goods will be delivered to the kerbside adjacent to the delivery site. If at the customer’s request, the delivery vehicle leaves the road and enters the delivery site to unload, the customer is responsible for providing suitable and safe access for the CSR delivery vehicle and agrees to indemnify CSR and its agents for all damage and injury to any person and to any public or private property which may result including any costs associated with enabling the delivery vehicle to leave the site.”
The dockets make it clear that the delivery site was 8 Rignold Street, Seaforth. They also demonstrate that there had been a considerable number of deliveries of concrete to the site in the eight month period between August 2000 and March 2001. On all occasions, it appears that the delivery of concrete was made to Pump Force’s hopper which was situated on Rignold Street itself, adjacent to the building site. The procedure was described in the evidence. The concrete truck driver would arrive at the site but remain on the roadway at Rignold Street. The truck driver would drop the chute of his truck to enable concrete to flow out of the truck barrel into the chute. It would then pass via the chute into the hoppers of the pump operated by Pump Force. It would then be driven along the pipes across the building site to where the concrete was to be used.
The contract between CSR and the respondent highlighted that the building contractor would assume responsibility if the delivery vehicle left the road and entered the delivery site. By contrast, CSR (and hence its independent contractor drivers) had responsibility up to the point when the truck left the road and moved onto the delivery site. If the vehicle moved onto the delivery site, the contractor was responsible for providing suitable and safe access for the delivery vehicle. If it remained off-site, the risk did not pass to the respondent. It remained with CSR.
Quite apart from the contractual situation, what did the factual circumstances found by the primary judge demonstrate? This question may be addressed against the background of the established category of cases (considered in Leighton Contractors v Fox) in which a principal may incur liability in relation to the complex of activities on a building site. The relevant occasions for liability identified by the High Court appear at [46]. They include the situation where liability is incurred for the tortious act of an independent contractor that has been directly authorised by the builder. That clearly had no application to the facts as found in this matter.
Secondly, liability might arise for breach of specific duties as an occupier. That clearly had no scope for operation in the present matter as the appellant sustained his accident well before arriving at the location of the building site.
The only remaining basis (the one contended for by Mr Gross) was liability for the failure to coordinate the activities of the independent contractors, in the sense that the respondent ought to have insisted that the delivery point to the pump or pumps should be closer to Boronia Lane. Alternatively, it should have insisted that smaller concrete delivery trucks be utilised.
There is no doubt that the respondent had an obligation (in its general position as head contractor) to engage a competent contractor to carry out the concrete pumping aspect of its building contract with the owner. It did so by engaging Pump Force. Similarly, it was required to select a competent and experienced concrete supplier and to rely on it and its independent delivery contractors to bring the concrete to Pump Force and hence to the building site. This is precisely what Watpow did. There is simply nothing to suggest that this arrangement was not squarely in line with the principles enunciated by Brennan J in Stevens v Brodribb.
The respondent had neither expertise in the driving of concrete trucks nor any specialised knowledge in the operation of concrete pumps or their placement. It engaged Pump Force, an experienced and competent pump operator, to pump concrete to the site. As part of its responsibilities, Pump Force was, in general terms, responsible for the location of the pump truck and the laying of the pipes to the site. No doubt the respondent, through Mr David Watson, was involved in some discussions with Pump Force in that regard. But he was entitled to rely on Pump Force and to place the organisation and operation of the pumping operation (including the location of the hoppers and pump) in the hands of the sub-contractor.
Even more significantly, the respondent was entitled to look to CSR to make determinations as to whether its delivery vehicles would be able to effectively and safely deliver concrete to the pump in its location adjacent to the building site. As the primary judge found, the advice given by the CSR representatives was that Rignold Street, despite its narrowness and other difficult features, would be able to be negotiated by delivery trucks. The only modification suggested by CSR was that there should be a limitation on the amount of concrete each truck carried. This was to take into account the incline of Rignold Street.
Mr Gross argued that the conversation between Mr David Watson and the CSR representative (or representatives) did not amount to an express warranty that the method of delivery proposed was safe. However, in my opinion, a contracting party in the position of the respondent was entitled to infer, following discussions with CSR, that the assurances given were intended to convey, and did in fact convey, that CSR delivery trucks would be able to get the concrete safely and effectively down to the delivery point favoured by Pump Force.
Mr Gross relied on two factors to support his principal argument. The first was the fact that, following a complaint by drivers, the respondent had arranged for one of its employees to trim the foliage in certain parts of Rignold Street so that truck drivers could more easily use their rear and side vision mirrors when reversing down to the building site. The second matter related to the series of admissions Mr Gross claimed he had secured from Mr Watson during cross-examination.
As to the first, the facts do not support the contention. First, the primary judge found that neither the trimming of foliage in Rignold Street, nor the filling of some potholes in the road undertaken by the respondent caused the accident: Miljus v CSR Ltd (No 4) at [109]. Secondly, the evidence was that an employee from CSR had attended the site and requested that the respondent trim branches of overhanging foliage along Rignold Street on 15 March 2001. The further evidence was that this was done and that the CSR employee returned on 19 March 2001 to check that the trimming had been carried out. There was no suggestion that it had not been.
Thirdly, the fact that CSR came to the site and asked the builder to have one of its employees trim the foliage proves, if anything, that CSR regarded itself as responsible for ensuring that its drivers were able to obtain access to the building site without the difficulties with vision caused by an over-proliferation of foliage along the roadway.
As to the admissions made by Mr David Watson: there is no doubt that Mr David Watson was a compliant witness and he was somewhat generous in relation to his perception of his responsibilities towards neighbours and people coming to the site. At no stage, however, did he accept that he had a responsibility, prior to the accident, to introduce the two pump system. While he accepted CSR’s decision after the accident that they no longer wished their trucks to reverse all the way down to the building site, and while, following that decision, he took steps to create an alternative system, he did not accept that he should have considered, contemplated or introduced such a system prior to the accident.
To the extent that Mr David Watson made concessions in cross-examination, those concessions, in my view, could have little weight, particularly having regard to their generality, in determining the application of the appropriate legal standard for demonstrating retention of legal responsibility: Dovuro Pty Ltd v Wilkins [2003] HCA 51 ; (2003) 215 CLR 317 at [66]–[71] per Gummow J, at [40] per McHugh J, and at [25] per Gleeson CJ.
The combined effect of all the so-called concessions made by Mr David Watson really came to no more than this: he was, he agreed, an experienced builder and had worked over a number of years with concrete truck operators and was conscious, in general terms, of the need to provide proper access for them to a building site. None of this, in my view, had any real weight or relevance to the issue of the existence of the asserted duty of care. None of it denied the significant fact that the respondent Pump Force and CSR were two experienced operators in connection with the specialised project of supplying and pumping concrete to a building site. The primary judge took the view that Mr Watson’s self-imposed sense of obligation towards people working on or in connection with the site would not have given rise to a duty of care, in any event. This was because there had been no reliance by the appellant upon that self-imposition, to the extent it existed. The facts and legal principle clearly supported the primary judge in that regard.
As to the issue of reliance, the evidence was clear. The appellant had driven towards Seaforth but was unable to find Rignold Street. He contacted his base and was told to get in touch with another driver who was at that moment in the course of making a delivery of concrete to the Rignold Street site. The appellant spoke to that driver, who told him where the location was and gave him certain instructions about how he should go about reversing down Rignold Street. The appellant took the opportunity when he reached Rignold Street to stop his vehicle and walk down the roadway to assess for himself the best method of approach. He also had the assistance of his father. There was no discussion or reliance upon any Pump Force employees or the respondent. The appellant made up his own mind about the matter.
Finally, on this point, Mr Gross relied on two authorities. The first was Ilvariy Pty Ltd trading as Craftsman Homes v Sijuk [2011] NSWCA 12. The second was Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11 ; (2011) 243 CLR 361. As to the first, I do not consider that it is of assistance to the appellant. The case there concerned the liability of a builder/occupier to a plaintiff who had sustained injury while climbing on defective scaffolding on the site. The accident in the present matter did not occur on or even adjacent to the building site.
Nor do I consider that Kuhl is of any assistance to the appellant. The majority in that case held that a duty was owed because of the defendant’s special role in supplying equipment, setting it up and directing and supervising the operators of the equipment. That situation contrasts markedly with the present case. Edensor provided the truck for delivery, and CSR devised the system of work adopted by the delivering sub-contractor. Effectively, the respondent had no say whatsoever in relation to that system of work.
Thus far, I have considered the duty of care issue from the perspective of the Stevens v Brodribb analysis. I have concluded that, while the respondent had a general duty of care as an occupier of the building site, it did not have the duty of care sought to be ascribed to it by the appellant.
But I would go further. I am by no means persuaded, in any event, that the question needs to be analysed by reference to the Stevens v Brodribb construct. The circumstances here are really at a remove from the considerations arising in that case.
Mr Gross argues that the asserted duty of care was in place and operative as the appellant’s truck moved from Boronia Lane to Rignold Street. However, at that point the appellant was in the process of delivering concrete to the Seaforth site as a consequence of a contract between CSR and the respondent. Whatever obligations might arise as between the respondent and Edensor’s driver once the truck had arrived at the site and the concrete was being passed through Pump Force’s equipment to the building site itself, it is difficult to see that any duty of care was operative prior to the vehicle’s arrival at the site. The contractual terms certainly did not support such a proposition. Indeed, there was no joint activity as between the respondent and the delivery company or its driver at the time the vehicle moved into Rignold Street. There were, at that moment, two separate activities taking place, with the potential event giving rise to a relationship and hence a duty of care yet to occur.
It was in this context that Mr Gross made his submission that, if the primary judge were correct, there would arise throughout the building industry, as he described it, an island of tortious immunity. By this, I took Mr Gross to mean that independent contractors often move freely between working sites during the day, and that responsibilities should be imposed on the operators of building sites to ensure that the routes contractors are following are suitable for the purposes of approach to the building sites themselves. Senior counsel referred to the need to erect fencing, warnings, directions and the like. Mr Gross’ argument was anchored partly in the context of reg 73(2) of the Construction Safety Regulations. I shall turn to that in a moment.
The problem is, where is the line to be drawn? The respondent’s duty as a co-ordinator of the site or as an occupier says nothing as to whether a duty was owed to take reasonable steps to avoid any risk that a truck might overturn as it approached the building site on a public road. Did that duty extend to, and also require, the building site owner to examine the nature of the turn itself from Boronia Lane into Rignold Street? If that were a difficult turn, was he under an obligation to place warnings and structures there? Did it require him to look at Boronia Lane and its access from the main road leading to that part of Seaforth and take similar precautionary measures? Given, as the primary judge held, the provisions of the Roads Act deprived the builder of any responsibility in relation to the condition of the public roads in the vicinity of the site, and indeed of any entitlement to act in that regard, it is difficult to see that, at least in the circumstances of this case, Mr Gross’ arguments could have any real content.
On this basis also, I would decline to find a duty of care as asserted by the appellant.
I turn then to consider the Construction Safety Act 1912 and the Regulations made under that Act. It is common ground that these were in force at the time at which the appellant’s accident occurred.
Construction work is defined in s 3 of the Act to include:
“… building work, excavation work, compressed air work and diving work.”
Building work is defined to mean:
work in constructing, erecting, installing, adding to, altering, repairing, equipping, finishing, painting, cleaning, signwriting, sheathing, spraying, dismantling or demolishing or any other prescribed operation that:
is done in relation to a building or structure, at or adjacent to the site thereof, or
is done in relation to a vessel on or adjacent to the vessel while it is at a wharf, in dock or on slips, and
work in lining any shaft, well or tunnel.”
Section 22(1) deals with the making of regulations. It is in the following form, relevantly:
22 Regulations
The Governor may make regulations not inconsistent with this Act prescribing all matters which are required or authorised to be prescribed or which are necessary or convenient to be prescribed for carrying out or giving effect to this Act.”
Included in those matters that are mentioned in subs (2)(g) is, at (iv), the manner of carrying out construction work and at (v):
“… safeguards and measures to be taken for securing the safety and health of persons engaged in construction work …”
Part 5 of the now repealed Construction Safety Regulations deals with:
“The manner of carrying out construction work, and safeguards and measures to be taken for securing the safety and health of persons engaged in such work.”
The Regulation includes the following:
73 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 and for this purpose, without limiting the generality of the foregoing, he shall, subject to Regulation 74:
provide and maintain safe means of access to every place at which any person has to work at any time …”
Mr Campbell argued that the Regulation had no application to the present situation in any event.
Senior counsel made three points. First he argued that the appellant here was involved in transport or delivery work and that such an activity did not fall within the definition of construction work under the Act. Secondly, the aspect of “construction work” relied on here was the “building work” engaged in by the respondent. Relevantly, “building work” for the purposes of the application of reg 73(2) was work done “at or adjacent to the site” of a building or structure. In this case, as the appellant was injured on his way to the site, the Regulation could have no application to him, indeed, it could never operate in his favour.
Thirdly, Mr Campbell argued that reg 73(2) is concerned with providing a safe means of access to a place of work. The appellant’s place of work, it was argued, was the truck he was driving at the time of the accident. Accordingly, he was at his place of work at the time of his accident and in those circumstances, reliance on reg 73(2) was misconceived.
I do not agree that Mr Campbell’s first two arguments can be accepted. The third, I consider, is equivocal to the outcome of the appellant’s argument.
It is true that the appellant was involved in delivering concrete to the Seaforth site. However, he was not in the position of a mere delivery agent, for example, somebody simply bringing food or beverages to the site. His duties as a contract driver with CSR required him, when he arrived at the site, to park the vehicle alongside Pump Force’s truck and then take the necessary steps to move the concrete from his own truck into the hopper and hence onto the building site.
As can be seen, Mr Campbell’s arguments focus on the definitions in the Construction Safety Act. As McHugh J pointed out in Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26 ; (2009) 221 CLR 568 at [12], definitions are not intended to enact substantive rules of law. Their function is to aid the construction of those substantive enactments that contain the defined term or terms. The scope of the regulation making power in s 22 of the Act extended to the manner of carrying out construction work and, in particular, the provision of safeguards and measures to be taken for securing the safety and health of persons engaged in construction work. In my opinion, the dualities of the activities the appellant was required to perform were sufficient to suggest that, prima facie, he fell within the concept of a person engaged in construction work (building work) so as to bring him within the potential operation of reg 73. However, such a finding begs the question as to whether the provision requiring maintenance of a safe means of access for his benefit had any content prior to the time at which he arrived at the work site.
Mr Campbell’s third point, although partially correct, would be equivocal because, once again, when the concrete delivery truck becomes part of the process of passing the concrete through to the building site, it seems to me that the driver is both at work on his truck and engaged in the construction activity. This will not always be the case as the authorities to which Mr Campbell referred make clear. But, in the present matter, I would be satisfied that the dual activity, as I have described it, is contemplated as likely to take place.
On the assumption, therefore, that the appellant was a person to whom reg 73(2) had the capacity to operate in relation to the subject project, the question remains: what meaning should be given to the words provide and maintain safe means of access to every place at which any person has to work at any time?
In my opinion, the natural meaning to be afforded to the language of the Regulation, in its overall context and having regard to the beneficial nature of the legislation under which the regulation making power was conferred, is that an obligation was intended to fall upon, in this case, the head contractor and occupier to take all measures that appear necessary or advisable to minimise accident risk, and to prevent injury to a person delivering goods to the site, once he is at the site and may be properly said to be involved in the construction process. The practical content of this, in the present case, is that, prima facie, reg 73(2) would have application at the time when the process of passing the concrete through the pump systems was engaged. The obligation, of course, is one of providing safe access but logically it would extend to the place where the pump was located, even though it was immediately adjacent to the building site and not upon it.
The conclusion from this analysis may be briefly stated: I do not think the Regulation has any operation in relation to the delivery vehicle’s passage along a public road as it makes its way to the construction site. The word access can, of course, be broadly used and is often used to mean “a way or means of approach to a place”. It is defined by the Oxford English Dictionary to be: a means of approach; a route by which a place may be accessed; an entrance.
In this regulatory framework, especially having regard to the statutory landscape, it is appropriate to confine the meaning of the Regulation to its ordinary meaning of entrance to or egress from a work site. That is, generally speaking, the way it has been interpreted: Australian Iron & Steel Pty Ltd v Luna; F & D Normoyle Pty Ltd v Transfield Pty Ltd t/as Transfield Bouygues Joint Venture [2005] NSWCA 193 ; (2005) 63 NSWLR 502; ; Ballina Shire Council v Daley. Mr Gross was unable to point to any authority which supported his proposition that the Regulation has scope beyond the perimeters of the construction site, or at least the area immediately adjoining or adjacent to the construction site. Even if such a possibility could be envisaged, it would not extend to the circumstances of this case.
If I be wrong in my construction of the Regulation, it nevertheless remains the fact that this was not a case in which breach of the Regulation was pleaded. It was simply allowed to stand as a particular of negligence. In that situation, I consider that it had very little, if anything, to say as to either the existence of or the scope of the respondent’s duty of care.
As to the latter, it is not the case (as Mr Gross’ submissions tended to suggest) that the statutory obligation, which applies regardless of fault, is simply transposed into the duty to exercise reasonable care. As the High Court observed in Leighton Contractors v Fox at [49]:
“While it is true that obligations under statutory or other enactments have relevance to determining the existence and scope of a duty, it is necessary to exercise caution in translating the obligations imposed on employers, principal contractors and others under the OHS Act and the Regulation into a duty of care at common law. This is because, as Gummow J explained in Roads and Traffic Authority (NSW) v Dederer (2007) 234 CLR 330 at 345[43] ‘whatever their scope, all duties of care are to be discharged by the exercise of reasonable care. They do not impose a more stringent or onerous burden’.”
The final matter relied on by Mr Gross in relation to the duty of care issue is the Code of Practice. This is a Code of Practice, it will be recalled, relating to the pumping of concrete. It was gazetted in 1993 and commenced on 1 March 1994. Its purpose is to provide guidelines for the safe operation of concrete pumps and ancillary equipment used for pumping concrete. It is an approved Code of Practice pursuant to s 44A of the Occupational Health and Safety Act 1983.
Clause 2.1 deals with planning by builder. It includes the following:
“When planning for pumping concrete to be on site the builder or principal contractor should consider such factors as:
clear access to the pump unit for concrete trucks;
safe and unobstructed access for the general public if the pump unit is set up in the street.”
Clause 2.3 deals with planning by concrete pumping contractor and provides:
“In addition to collaboration with the builder or principal contractor in the overall planning for pumping concrete on site, the concrete pumping contractor should consider:
the location of the pump and access for concrete delivery trucks.”
Clause 3 deals with work practices and protective measures. Clause 3.1 deals with setting up “on site” including work practices and protective measures on the site itself. The references within it to positioning the pump away from excavations, trenches and inadequately compacted or soft ground make it clear that the obligation for “clear and safe access to approach” for delivery trucks relates to on-site activities.
By contrast, cl 3.4 deals with setting up in a public place, for example, a street. There is no reference in that section to any obligation in favour of a delivery vehicle concerning the location of the pump.
Clause 3.2 deals with location of the concrete pump and provides for a clear definition of the area where the pump is located, clear access and adequate lighting around the unit at all times; cl 3.3 deals with setting up a pump near power lines or electrical equipment; cl 3.5 deals with traffic control and in this regard there is a requirement to:
“Ensure that pedestrians on or off the site are not at risk from trucks delivering concrete to the pump by nominating a person whose duties will be to control the traffic. This person should wear the appropriate personal protective equipment.”
There are also clauses requiring attention to the emission of noxious fumes, prevention of unnecessary noise and vibration, etc. There are a plethora of provisions requiring appropriate measures of cleaning out the pipes, the receiving hopper and for activities such as line cleaning, pump inspection and regular maintenance.
The setting-up on site requirements make it clear that the pump should not be positioned on any part of the site where there are excavations, trenches or holes in the ground, etc. Unauthorised persons are to be kept away from the immediate area of the machine. In particular cl 3.1(f), (g) and (h) are as follows:
Concrete delivery trucks should have clear and safe access to approach and leave the receiving hopper of the pump.
If more than one truck is required to approach the receiving hopper at any one time, a spotter or traffic controller should be on hand to safely direct the movement of the trucks.
No person should stand between the reversing truck and the hopper.”
In my opinion, the Code of Practice for pumping concrete has no relevance in this appeal to the existence of a duty of care, as asserted by the appellant.
Firstly, as has been said, there was no pleading to suggest it had any part to play in either the duty of care issue or in relation to breach. Mr Campbell, during argument, correctly identified that objection was taken to any reliance on it when it was first raised at trial, and that Mr Gross had disavowed reliance upon it other than to say it provided some type of enlightening background for the roles of different people on the building site.
Secondly, again as Mr Campbell argued, s 46(2) of the Occupational Health and Safety Act carried with it, in the case of breach, no civil or criminal liability.
Thirdly, I am not satisfied that, in any event, the Code of Practice has any role to play in assessing either the existence or scope of a duty of care in the present matter. The guidelines provided by the Code of Practice are essentially dealing with safety issues in the actual operation of concrete pumps and ancillary equipment used for pumping concrete. They have nothing to do with the preservation of the safety or protection of persons driving to a work site where a concrete pump may be operated. Clause 3.1 makes it clear that the clear access to the pump unit for concrete trucks arises in a situation where a pumping unit is on site. Where it is not on site, the only obligation for safety relates to “safe and unobstructed access for the general public”. It has nothing to do with contractors delivering to the site.
In the section (cl 2.2) dealing with planning by the pumping contractor, once again the obligations there relate to the planning for pumping concrete on site. Access for concrete delivery trucks is obviously important where those trucks have to access the pumping equipment on the site itself. The clause has nothing to do with the circumstances of the present case. Similarly, for the reasons I have earlier identified, cl 3.1 and cl 3.4 do not advance the appellant’s argument.
In my opinion, the Code of Practice has no bearing on the duty of care issue.
Notice of contention
The respondent has filed a notice of contention which raises a number of matters. One of those goes to the issue of breach of duty of care. It is convenient to deal with that issue at this stage. The notice of contention is in the following terms:
His Honour erred in finding that the risk of accident involving a truck moving down the roadway was foreseeable in circumstances where:
the respondent had obtained advice from a specialist sub-contractor that it was able to deliver concrete to the site via Rignold Street;
his Honour had the benefit of evidence that established that as at 20 March 2001:
some 300 to 400 cubic metres of concrete had been delivered to the property without incident;
in the vicinity of 45 to 70 concrete trucks had delivered concrete to the property via Rignold Street without incident;
extensive additional truck movements, including the concrete pump truck, had traversed Rignold Street without incident;
representatives of CSR attended and inspected the site on 15 and 19 March 2001.
His Honour erred in finding that if the respondent owed a duty of care to the appellant then it breached that duty. His Honour ought to have found that the respondent discharged any duty it owed to the appellant (the respondent does not admit any such duty was owed) by acting reasonably in engaging CSR, a specialist contractor, to design and implement a system of work for the delivery of concrete to the property.
His Honour erred in finding that if the respondent had a duty in respect of the roadway, it would be appropriate for the scope of the respondent’s liability to extend to the harm suffered by the appellant in circumstances where the respondent had acted reasonably in engaging a competent specialist sub-contractor to design and implement a system of work for the delivery of concrete to the property.”
In my opinion, this aspect of the notice of contention has been made out. If, contrary to the primary judge’s conclusion, the respondent owed a duty of care to truck drivers involved in transporting concrete along Rignold Street to the site, the evidence overwhelmingly establishes that the respondent had dis­ charged that duty. It did so by engaging competent contractors who were responsible for the design and implementation of a system of work for the delivery of concrete to the site. The negotiations and commercial arrangements between the respondent and CSR, added to the consultations with the specialist pump contractor, Pump Force, adequately discharged, in my opinion, any duty of care owed by the respondent to the appellant.
Secondly, having regard to the number of prior truck movements over many months, the probability of harm occurring to anyone delivering goods to the site, including concrete trucks, was so low that a reasonable person would not have taken any precautions beyond reliance on the advice of specialist contractors in relation to such a possibility.
Each of the matters relied on by the respondent allow for only one conclusion. A practical and commonsense appraisal of the system demonstrated that the appellant’s argument was quite unrealistic. If there had been an obligation on the respondent at the outset of the project to place a second pump further up Rignold Street towards Boronia Lane and to use rigid piping to connect to an initial pump near the site, the consequence would have been quite unreasonable for the residents whose access to their properties in the vicinity would have been obstructed over many months and for many hours a day. The appellant’s case demanded that such a system should have been installed at the very outset of the building project.
The appellant’s argument as to the relative ease with which the two pumps were installed does not outweigh these considerations. Mr Gross’ argument is, with respect, a classic example of hindsight reasoning. The fact that approximately seventy deliveries had occurred without incident militated strongly against the need to take the same precautions as were determined to be taken with the final three pours. This was specially so in the circumstances where CSR had inspected Rignold Street as recently as 19 March 2001 and had raised no further complaint about the delivery situation.
For these reasons, the notice of contention, in so far as it raises breach issues, should be upheld. Any duty that may have been imposed upon the respondent was to be discharged by the exercise of reasonable care. The respondent’s actions in coming to a sensible commercial arrangement with a responsible and experienced supplier were a sufficient discharge of any such duty.
The appellant seeks a new trial on the issue of damages. Although there are numerous grounds of appeal, the critical issues may be synthesised and distilled as follows.
Whether his Honour erred in law in his quantification of the appellant’s past economic losses. In particular, whether he erred in law by relying on the appellant’s and Edensor’s tax returns for the 1999 and 2000 financial years, rather than on other material. Although the issue transposed itself into a loss of earning capacity for the future, I shall refer to this as the past economic loss claim.
Whether the primary judge erred in failing to adequately assess the appellant’s residual earning capacity by reference to both his orthopaedic and psychiatric injuries. I shall refer to this as the residual earning capacity issue.
Whether his Honour erred in relation to the assessment of the appellant’s domestic assistance claim.
It should be said that there were a plethora of other complaints made about his Honour’s approach, reasoning and fairness in the assessment of damages issue. I do not consider that it is necessary to deal with every one of these but, where such a complaint is relevant to the main points, I shall deal with it.
The primary judge’s findings on damages
His Honour made a detailed analysis of the evidence and the issues raised in relation to the question of damages. I shall briefly summarise this aspect of his Honour’s decision.
The primary judge identified the principal physical injury suffered by the plaintiff as an injury to his lumbo-sacral spine. He identified, however, that the plaintiff had also developed a significant psychiatric injury since the accident. It should be said immediately that his Honour accepted both these aspects of the appellant’s claim. They were, his Honour identified, the injuries which the appellant argued had impeded his return to useful work. There were some relatively minor injuries identified as a consequence of the accident, but those dissipated reasonably quickly: Miljus v CSR Ltd (No 4), see [127].
The primary judge then described the plaintiff’s own evidence as to his disabilities consequent upon the accident. This included his statements about the degree of pain he suffered and its variation from time to time. He maintained that the number of pain killers he must take affects his concentration and that this has restricted him to driving an ordinary motor vehicle for about 20–30 minutes at a time. He is not able to return to driving heavy vehicles because of his psychiatric problems.
The appellant described his initial treatment by medical practitioners. His general practitioner was Dr Nikolic at Fairfield. It was he who sent the appellant off for a CT scan and also referred him to a Mr Zepenic for psychiatric consultation. There were no reports from Dr Nikolic, but there was reference to later treatment by Dr Ghaly. The appellant was, however, chiefly under the care of two persons before Dr Geoffrey Rosenberg, an orthopaedic surgeon, became his specialist on 22 March 2004.
The primary judge referred to his earlier decision where he had made preliminary rulings on the admissibility of certain medical reports. Partly as a result of those rulings, there was only one report from Dr Ghaly, a report of 7 January 2002, which was ultimately received into evidence. There was then a reference to Mr Zepenic whose qualifications and experience were never proved. It seems there was some cloud over Mr Zepenic on the basis that he had unlawfully held himself out as a registered medical practitioner. This cloud meant that his reports were admitted into evidence but limited to the basis of providing contemporaneous evidence of complaints made by the appellant.
His Honour then set out detailed sections of Mr Zepenic’s reports which recorded those complaints that had been made by the appellant between 2001 and 2004. They included severe pain radiating from his lower back down the back of both legs, his inability to sit for more than a few minutes at a time because of an intensification of back and leg pain; bending and lifting was difficult; even walking for more than a few minutes caused worsening pain. The appellant had stated to Mr Zepenic that it was difficult to contemplate even doing light duties as a truck driver.
A later report complained of difficulties in prolonged sitting or standing. He was only to manage around half an hour’s walk of up to two kilometres. He was unable to run, use stairs, lift, carry or climb, etc. He also complained of depression, tiredness and mood anxiety. He complained that he felt hopeless about his future … and unable to get pleasure in almost anything. This report was dated 6 September 2004.
His Honour then turned to the appellant’s consultation with a neurologist, Dr Grant Walker. This was in February 2004. Dr Walker’s reports were in evidence. The appellant complained to Dr Walker about pain in the lumbo- sacral region on the right which sometimes radiated down the back of his right leg. Dr Walker referred him for an MRI, which showed significant disc degeneration particularly at the L5/S1 level and some narrowing of the intervertebral foramina bilaterally at the L5/S1 level, but more marked on the left side which, Dr Grant Walker observed, was not the side of the appellant’s symptoms. There was nothing at the L4/5 disc of any interest.
His Honour recorded that Dr Walker thought that the prognosis was for a continuation of the pain into the foreseeable future, but with a more graduated exercise program (such as swimming) and judicious use of medication the appellant might be able to re-enter the work force, but not in a labour intensive job. Heavy lifting or prolonged sitting such as truck driving would be unsuitable.
Dr Geoffrey Rosenberg, an orthopaedic surgeon, assessed the appellant from March to August 2004. An up to date assessment was given by the specialist in January 2010. His Honour stated that the complaints made by the appellant to Dr Rosenberg during 2004 were much the same as those that had been made to Dr Walker and Mr Zepenic. He was, the primary judge observed, still suffering pain to a greater or lesser extent in the lower back.
Dr Rosenberg said in his 2004 report that the appellant had suffered an injury to the lumbo-sacral disc causing ongoing problems. In his 2010 update report, he remained of the view he had originally expressed. Dr Rosenberg said that the appellant would do well to lose weight, tone up and embark on a structured exercise program aimed at core strengthening. But he thought it unlikely that the appellant would improve as he had had the problem for almost nine years. He was also conscious of the appellant’s mental state and the fact that this would impede his motivation and hence his recovery. He expressed the pessimistic view that, in his opinion, the appellant would not be fit for any sort of work given the severity of the pain.
In his report of 27 March 2004, Dr Rosenberg referred to a recent MRI scan showing a very degenerate lumbo-sacral disc. This does not appear to be in evidence. Dr Rosenberg thought appropriate surgery would be for a lumbo- sacral fusion, but clearly regarded this as a question of last resort.
His Honour noted that the appellant had also consulted Dr Habib, an orthopaedic surgeon, in September 2004. Dr Habib noted that the complaints of pain in the back and leg persisted, but he thought that the back injury had stabilised. He thought that the appellant was moderately restricted in carrying out physical activities. Importantly, Dr Habib concluded that if the appellant were cleared by a psychiatrist for return to work, he would be able to undertake suitable light duties on a part-time basis, three to four hours a day, three to four days a week, in a semi-sedentary capacity such as a supervisory job or carrying out office duties, answering phones or arranging deliveries in his own field of concreting.
His Honour observed, in passing, that the complaints of the appellant to Dr Walker and Dr Rosenberg involved pain radiating down the right leg, whereas the complaint to Dr Habib involved pain and weakness down the left leg. His Honour noted that Dr Walker had said that the radiology tended to show more marked changes on the left side but this was not the side of the appellant’s complaints.
I should interpolate that Mr Gross was critical of the primary judge for making a credit finding of some kind adverse to the appellant in the circumstance of the last comment. For my part, however, I do not read his Honour’s decision either in that section or generally as involving any major credit finding against the appellant. Indeed, as will be seen, his Honour accepted not only the injuries sustained by the appellant, both of a physical and psychiatric nature, but accepted also the genuineness of the complaints he made to the various treating doctors and other specialists. His Honour noted that none of the orthopaedic specialists nor Dr Walker had given evidence before him, and that no attempt had been made by the plaintiff to resolve this apparent conflict in the complaints. However, I do not think that anything turned on this in relation to his Honour’s overall findings concerning the appellant, nor did anything turn on it in relation to the assessment of damages.
The primary judge then gave consideration to the evidence given by the plaintiff concerning his current disabilities and their impact on him. His Honour noted the plaintiff’s evidence that he lived with his parents but that he did little work around the house. Since the accident he has not been able to mow the lawn as he used to and he is unable to carry out such domestic assistance as washing the driveway. Generally, he said he did nothing around the house. His mother did all the domestic work.
His Honour then turned to examine the psychological and psychiatric evidence. His Honour noted that, in his earlier judgment, he had decided that some of Mr Basten’s reports (a psychologist who had seen the appellant from August 2001 to January 2002) should be admitted into evidence, but limited to the issue of history and contemporaneous complaints. His Honour explained that he limited the evidence in this way because of the fact that in the trial concurrent evidence had been given by a conclave of psychiatrists which did not include Mr Basten. It appears Mr Basten’s opinions differed markedly from the conclave opinions.
Principally, Mr Basten had received complaints from the appellant indicating his fear and avoidance of driving large trucks.
His Honour then turned to the joint reports of Dr Robert Lewin and Dr Benjamin, the psychiatrists. As stated much earlier in these reasons, there was ultimate agreement between them that the appropriate diagnosis was a chronic adjustment disorder accompanied by a degree of personality decom­ pensation.
Importantly, the psychiatrists thought that the appellant would be fit to work on a half-time basis at the time of their report of 30 April 2010. His Honour referred to their elaboration on this point during their evidence. He said (at 154):
“They thought that when the litigation had concluded the plaintiff should be able to work three days a week, five hours per day. Perhaps a month after that time, the plaintiff could extend to twenty-five hours a week and then to thirty hours after another two months. He may remain at that level for perhaps the remainder of the twelve month period, when he would be able to move to full time work.”
Against the background of this evidence, his Honour assessed the plaintiff’s own evidence as to his views about his ability to work. His Honour said (at [156]–[158]):
“[156] The plaintiff’s main act of recreational activities before the accident were playing snooker and chess. Since the accident he occasionally plays snooker but the pain affects him. He says that he has not played chess since the accident. He says that the reason for that is that one needed to be calm and collected and to be concentrating on the game. Since the accident he does not have the calmness to concentrate so he does not play it any more. He now fills in his time by going to one or more of the clubs to which he belongs.
[157] As far as work is concerned, the plaintiff says that he looks at job advertisements every now and again. He said that he is only interested in driving jobs and he is looking for something like courier work. He was asked when he last applied for a job and said had not really applied for a job at all. Certainly he had not done so in the past five years. He agreed that he was physically capable of doing the job of a refrigeration mechanic which was work he had been trained for and had done before he commenced driving trucks. He agreed it was not hard physical work but it was necessary to keep up to date with new systems.
[158] He claimed to want to work but it was very clear that he was only interested in getting some sort of driving job. He agreed that the organisation which was endeavouring to rehabilitate him for work had made a suggestion of doing some unpaid driving work for charities. This never eventuated because the plaintiff expressed some negative views about being able to lift heavy things that might be needed, as he thought, in that sort of job.”
The primary judge then turned to assess non-economic loss. (The respondent has placed a contention on this finding which I shall address later). Ultimately, his Honour found that the appellant should be assessed at being 35% of the most extreme case. That entitled him to damages for non-economic loss of $175,000. In making this finding, it must be said that the primary judge accepted to a considerable degree the case presented by the appellant. He considered that the respondent’s assessment on this point was quite unrealis­ tic. His Honour said (at [159]):
“There can be no doubt that the plaintiff has sustained a considerable injury to his lumbar spine which has persisted for more than nine and a half years and seems likely to be permanent even if he embarked on surgery. Whilst it is always very difficult to assess another person’s pain level, and whilst I think the plaintiff may to some extent have exaggerated those pain levels … he has radiological support for the pain he claims.”
His Honour said that he had no doubt that the plaintiff had sustained psychiatric injury after the accident. His complaints of anxiety, depression, sleeplessness, anger and lack of motivation were consistent with such an injury. His Honour noted that, while the psychiatrists who gave evidence had no doubt about the psychiatric injury, they were, on the other hand, hopeful that at the conclusion of the litigation and after the plaintiff had returned to part-time work, his psychiatric symptoms might improve.
His Honour then turned to look at economic loss. This directly involved the first issue which is raised in the appeal on damages.
The method his Honour adopted was to examine first the amount Edensor received from CSR on a weekly basis. This of course depended upon the number of loads of concrete delivered each week. The monies from CSR were paid into the bank account of Edensor. It was customary for the appellant to pay expenses, including loan repayments from that account, before taking a wage for himself. He identified in his evidence that he was taking a couple of hundred dollars per week for himself.
The tax returns from Edensor Transport for the years ended 30 June 1999 and 30 June 2000 were before the Court. The second indicator was the tax returns lodged by the plaintiff himself for the years ended 30 June 2000 and 30 June 2001. After examining these figures, his Honour said (at [170]):
“The figures … in the Edensor tax returns for wages and salaries are consistent with the plaintiff’s own evidence that he took wages of a few hundred dollars per week. In fact, in the nearest complete year before the accident, he appears to have been paid gross wages of $20,931. Assuming therefore, a gross weekly wage of about $400, the plaintiff’s net wage was $334.24.”
After examining each of the figures for the relevant years, his Honour determined that the appropriate figure to take as the plaintiff’s weekly wage prior to the accident was $400. That represented a net figure which he rounded up to $335. It should be noted, as it is relevant to the appellant’s appeal on damages, that the deductions in the Edensor Transport tax returns included motor vehicle expenses of $35,585, depreciation of $10,712 and rent of $13,000.
His Honour addressed (at [173]) one of the arguments put to him in the following terms:
“[173] The plaintiff has claimed a net figure of $350,798 from 27 March 2001 to 3 September 2010 (being the last day of the hearing) but those figures are based on the plaintiff having a gross weekly wage in 2001 of $764 per week, and indexed thereafter to the CPI for Sydney. The figure of $764 is said to be based on the earnings referred to in the CSR Readymix Agreement that CSR had with Edensor. The figures do not coincide with the figures in the tax returns showing what Edensor paid to the plaintiff nor in what the plaintiff disclosed as his wages in his own tax return for 2001 tax year when those figures are projected for a full year.
[174] As the evidence from the two tax returns over the three year period 1999–2001 shows no increase in wages for the plaintiff, and no change in income for Edensor for the 1999 and 2000 years, I can see no basis for increasing the plaintiff’s net wage by the CPI for each year from 2001 to 2010. That approach would only be appropriate if the matter was being determined by reference to the CSR agreement (which dealt with payments to Edensor) rather than the wages that the tax returns disclosed were being paid to the plaintiff.”
In the light of the calculations his Honour made, there was then the need to resolve the issue as to whether the plaintiff was fit for work and to what degree. If he were so fit, it was also necessary to determine when it was he had become able to take on some degree of remunerative work. His case, as I understand it, was that he really was unfit for work and therefore required an assessment for the loss of future earning capacity. As will be seen, his Honour’s findings negated that likelihood.
The primary judge returned to the evidence that he had examined relating to both physical and psychiatric injury. Since a number of criticisms were made about this aspect of his Honour’s decision, it is necessary to set out the paragraphs in full ([175]–[181]):
“[175] Although the Plaintiff was obviously totally incapacitated for work for a short period of time, the evidence points strongly to his being physically fit for work other than truck driving or heavy work from a relatively early time. A report from Joanne Springer, a rehabilitation counsellor at Work Directions Australia of 23 May 2001 noted that the Plaintiff’s general practitioner, Dr Nikolic, had certified him for suitable duties with restrictions including not driving a truck. The report went on to say that alternative work options were currently being identified for the plaintiff.
[176] The Plaintiff saw Dr David Millons retained by CSR on 28 September 2004. Dr Millons said that, orthopaedically, the Plaintiff ought to be fit for some light, semi-sedentary work avoiding excessive bending and lifting more than 10 kilograms. He should be able to handle some store or office work and could probably handle some light courier work.
[177] On 9 July 2004, Dr Walker thought that assuming psychiatric issues could be controlled, and assuming that the Plaintiff was able to adopt a more positive attitude to an exercise programme, it would be possible for the Plaintiff to re-enter the workforce at a reduced rate.
[178] By contrast, Dr Rosenberg thought on 19 August 2004 that the Plaintiff was not capable of working, certainly not as a truck driver, nor in any job for which he was suited, although whether that meant any job at all is not clear.
[179] He saw Dr Robert Lewin, a psychiatrist retained by CSR, in October 2004, July 2006 and December 2007. In his report of 5 July 2006, Dr Lewin expressed the view that there was no psychiatric condition which would impair the Plaintiff’s ability to work except factors related to his phobic avoidance of driving. The reference to driving must be a reference to driving heavy vehicles because the Plaintiff had told a number of other doctors that the problem was only with those vehicles and not with driving generally. In December 2007 Dr Lewin again considered the Plaintiff was fit for work.
[180] It can be accepted from this evidence that the Plaintiff was physically capable of returning to work at a relatively early time. However, I must give significant weight to the opinion of the psychiatrists who gave evidence at the hearing about the Plaintiff’s impaired psychiatric state. Neither in the joint report nor in their evidence did Doctors Lewin and Benjamin say when, preceding their report, the Plaintiff might have been fit for work. However, nothing in their joint report nor in their evidence suggested that the Plaintiff had not been fit for work prior to the time they prepared their joint report. I have already noted that Dr Lewin was of the opinion in July 2006 and in December 2007 that the Plaintiff was fit for work from a psychiatric point of view provided that he not engage in the driving of heavy vehicles.
[181] In my opinion, the Plaintiff was fit for part-time work from a physical and psychiatric point of view from at least 5 July 2006. The psychiatrists thought that it might take the Plaintiff a 12-month period to return to full-time work. That might take place over a number of graded intervals. There was no evidence about what the Plaintiff might have earned in any part-time work or any full-time work to which he could return. The best I can do is to base his partial loss of wages during that 12-month period on what he was earning as a truck driver. On the assumption, therefore, that he would have been paid $200 gross per week, his net wage would be $180 per week for a 12-month period.”
Thus it was, his Honour concluded, that the plaintiff had been fit for part- time work from the physical and psychiatric point of view from at least 5 July 2006. His Honour’s calculation of past wage loss was based on the graded steps necessary for the plaintiff to return to full-time work allowed for by the psychiatric evidence. This resulted in a past wage loss of $101,820.
His Honour then assessed superannuation and other expenses, including a provision for future treatment and future out of pocket expenses.
The final matter assessed by his Honour was the claim for domestic assistance. As to this his Honour said:
“[189] The only domestic tasks the plaintiff performed before the accident were mowing the lawn and hosing the driveway. He says that he cannot mow the lawn now. He lives at his parents’ house and, except for a very few short periods, he has always done so. His mother carries out all the domestic tasks.
[190] The plaintiff does not satisfy the threshold requirement of s 15(3) Civil Liability Act. The plaintiff has not needed domestic assistance to date. While there is some possibility that if he moved away from home and was living in a house that needed lawns to be mowed that he would have the need for some gardener or some handyman to assist, I consider that based on the plaintiff’s living arrangements to date, the chances of this happening are very small. When invited by his Counsel to say what he would do about domestic or other assistance if he recovered a verdict, he said he did not know. The plaintiff is not entitled to recover under this head.”
As these were contingent damages assessed by his Honour, he then made the orders he had foreshadowed earlier, namely, a verdict for the defendant and an order that the appellant pay the respondent’s costs.
Resolution of the damages issues
The parties were at odds with one another over several issues in relation to the assessment of damages. The appellant’s case was that his physical injuries and disabilities had really prevented him from working at all for some nine years. This position was compounded (especially in relation to the prospect of driving heavy vehicles) by his psychiatric condition. However, the appellant’s case was that for the future he would probably be able to work, although it would be a gradual process.
By contrast, the respondent argued that the appellant’s physical injuries were not as disabling as he claimed. For example, there was video evidence to show that the appellant did not appear to be significantly restricted in his movements. However, it was accepted that the combination of physical injuries and psychiatric injuries did mean that damages had to be assessed for past economic loss. As to the future, the respondent argued that at best a slight buffer should be provided for the period following trial to allow the appellant the opportunity to undertake work. In the end, as can be seen, the primary judge found that the plaintiff would have been able to undertake a limited amount of work from about July 2006. He accepted the joint psychiatric evidence which suggested that it might take the appellant some 12 months to return to full-time work once he had secured a position suitable for a person with his disabilities and background.
The first principal issue then was the method of calculation of the past economic loss claim. The appellant’s first contention was that these figures could be ascertained by having regard to projected earnings under the CSR Readymix Agreement with Edensor. The primary judge rejected this on the basis that he had the advantage of Edensor’s tax returns and those of the plaintiff. In my opinion, his Honour made no error in relation to this aspect of his decision.
I agree with the respondent’s submissions that a number of the arguments advanced in this appeal on the appellant’s behalf in relation to the assessment of the past lost earnings claim are purely speculative. For example, Mr Gross argued that a contract driver such as the appellant would not have been content on a long term basis with earnings which were less than the amount an employed CSR truck driver could earn. He suggested that, in those circum­ stances, the appellant may well have switched over to being an employed truck driver earning the rates of pay under the CSR Readymix Agreement which the primary judge held were irrelevant to the present aspect of the assessment. All these were, it must be said, matters of pure speculation. The appellant himself gave no evidence which would permit such a finding.
Mr Gross also argued that the primary judge did not consider the add backs referred to in the evidence of Mr Tomco, the appellant’s accountant. This was evidence that suggested that items such as depreciation and rent which were deducted from Edensor’s income to provide an ultimate assessable income ought be added back to the plaintiff’s earnings, so that those earnings would be increased by approximately $300 per week gross. Neither of these arguments has any substance. It is true that Mr Tomco pointed out that the $13,000 depreciation figure for capital items (such as the truck) in the 2000 year might be regarded as an “add back”, he conceded that the depreciation only gave rise to a paper reserve. The appellant had purchased a second-hand Ford truck in 1999 (or thereabouts) that was specially modified for CSR, and in 2000 he fitted a new engine into that vehicle. The real depreciation of a capital item such as the truck would require, in due course, the expenditure of considerable money in repair and probably replacement. Edensor had only a very small amount of working capital in the bank. The appellant argued that his true gross income in 2000 should be increased to allow for rent debts incurred in that financial year by Edensor but not actually paid. Once again, Mr Tomco agreed that “some time in the future, it would have to be paid”.
In my opinion, the primary judge made no error in assessing past economic loss by reference to the income the appellant would have derived from Edensor. Secondly, it was correct, in those circumstances, to assess the figures based on the appellant’s tax returns and by comparison with the income shown in Edensor’s financial records as having been paid to the appellant. No error has been demonstrated in the primary analysis of the appellant’s pre-injury income. Nor has any basis been shown for increasing the assessment for his loss of earning capacity to $742 per week, as alleged by the appellant in its submissions.
The second, and perhaps the principal, criticism of the primary judge is that he erred by paying too little attention to the appellant’s physical disabilities as a consequence of his injuries and paid too much heed to the joint psychiatric opinion. It will be recalled that his Honour had referred to a report from Joanne Springer, a rehabilitation counsellor who noted that the plaintiff’s general practitioner, Dr Nikolic, had certified him for suitable duties with restrictions including not driving a truck. This certificate had been given as early as 23 May 2001. Mr Gross was critical of the fact that the primary judge referred to it because, as he pointed out, the document was admitted on a limited basis, namely as relevant to history and complaints. I am not by any means convinced that his Honour incorrectly used the material. Read in context, it is clear that his Honour was doing no more than making the general point that the appellant was physically fit for some type of work at various points between 2001 and 2004. His reference to Ms Springer’s report was merely a starting point for these observations.
His Honour examined, in that connection, the reports of Drs Millons, Walker and Rosenberg. Of these three, Dr Rosenberg was the most guarded in his assessment of the appellant’s prospects for employment. The primary judge had remarked that Dr Rosenberg’s expression of opinion was not clear. In his report dated 19 August 2004, Dr Rosenberg concluded:
“I believe that given the history, his work is a substantially contributing factor to his current state. Given the ongoing severity of symptoms I do not believe he is capable of working, certainly as a truck driver, and indeed in any job for which he is suited. I propose surgery at some stage should symptoms become unmanage­ able, but suspect that he will require a fusion as opposed to a disc replacement.”
In my opinion, the primary judge was entitled to place a question mark over the meaning to be attributed to the statement in Dr Rosenberg’s report regarding the appellant’s capacity for work other than as a truck driver.
Some light is thrown on the ambiguity by the next report dated 30 January 2007. In that report, Dr Rosenberg said:
“I would assume that he continues to suffer with back pain and periodically leg pain as a result of his spinal injuries and certainly I believe he would struggle to perform his usual job as a truck driver, obviously involving prolonged stints behind the wheel in a seated position and presumably involving period loading and unloading of loads from his truck.”
In his final report dated 3 February 2010, Dr Rosenberg said this:
“It was my belief initially that he had sustained an injury to the lumbo-sacral disc causing his ongoing problems. Today my opinion remains the same. This man continues to suffer with chronic back pain due to an injury to his lumbo-sacral disc.
It is unlikely he will improve as he has had problems for almost nine years. Medication and physical therapies provide some short term benefit.
He would do well to lose weight and tone up, embarking on a structured exercise programme aimed at core strengthening. Obviously it is even more difficult to get him motivated due to his obvious mental state. I cannot see how he would be fit for any sort of work given the severity of pain. In theory one could provide surgical treatment but not unless he was in a better physical and mental state. Appropriate surgery, should this be offered, I believe would be a lumbo- sacral fusion.”
It can be seen from these reports that Dr Rosenberg saw the appellant in 2004. He provided an update report in 2007, although it does not seem that he consulted with the appellant on that occasion. He then saw him finally on 21 January 2010 for a final assessment.
The primary judge was faced with the not unusual situation of having to choose between a number of opinions expressed by doctors in circumstances where none gave evidence before him. He had, of course, the benefit of having observed the appellant over a number of days and had taken into account the evidence that he gave. In all those circumstances, I consider that it was amply open to the primary judge to reach the conclusions he did. In reaching those conclusions I do not believe that he over-emphasised the evidence of the psychiatrist, nor do I believe that he underestimated the various opinions expressed by the doctors who had examined the plaintiff to assess the extent of his physical injuries and disabilities. In addition, as I have said, he had the plaintiff’s own evidence on the issue as to whether he was able to work and what work he thought he would like to undertake.
While Dr Rosenberg clearly had reservations, Dr Millons thought the plaintiff was fit for some light, semi-sedentary work as at September 2004. Dr Walker, a neurologist, expressed the same opinion. What is significant, however, is that the primary judge formed his own opinion on these matters based on all the evidence. It was his finding that the plaintiff was probably not fit for part-time work until about July 2006. Thus it can be seen that he gave the appellant the benefit of the doubt and did not rely literally on opinions which had been expressed in 2001 and 2004 that he was then fit for work of a light or casual kind. While it is true that the evidence from the psychiatrist played a significant part in this finding, it was the combined effect of the medical evidence that led the trial judge to his conclusion. He had found expressly, on the plaintiff’s own evidence that his inability to work is a combination of his physical and psychiatric problems. It should not be overlooked, in the context of the present discussion, that his Honour found, when assessing non-economic loss, that the plaintiff had sustained “a considerable injury to his lumbar spine which has persisted for more than nine and a half years and seems likely to be permanent even if he embarked on surgery”.
I do not think any of the criticisms levelled by Mr Gross of the primary judge’s decision in this regard are justified.
There were two instances where Mr Gross accused the primary judge of acting with procedural unfairness. The first related to those references in his Honour’s decision to the fact that, on a number of occasions, the appellant had complained about pain or discomfort in his left leg when the medical evidence showed the problem was on the right side. I do not think there is any justification for these complaints and, as can be seen from a fair reading of the whole of his Honour’s decision, the observations he made played no part in the ultimate assessment of the appellant’s disabilities.
Secondly, there was a reference to the fact that the appellant had made no mention to two of the doctors he saw of the fact that he’d had a second accident on 28 June 2004. Once again, there is no justification in this complaint. The matter was referred to by the primary judge, but it played no part in his ultimate assessment. The matter was dealt with very fairly by his Honour and entailed no criticism of the appellant.
The various grounds of appeal relating to this aspect of the appellant’s complaint must be rejected.
The third and final matter is the domestic assistance claim. It only needs to be said that his Honour dealt with this issue briefly and adequately. There was no evidence given by the appellant that he would engage paid domestic assistance if his parents were to suffer problems of health or pass away at an early age. Indeed, there was no evidence as to the age and health limitation suffered by his parents, if any. In my opinion, the appellant has not shown error in relation to this ground of appeal.
Notice of contention
The final matter that arises relates to those aspects of the respondent’s notice of contention concerned with damages issues. There were two. They were that:
the assessment for non-economic loss was excessive; and
the primary judge erred in failing to make any discount for contributory negligence.
As to the first, I am perfectly satisfied that the primary judge’s assessment for non-economic loss was not infected by error. His Honour carefully examined the competing submissions and gave adequate reasons for the conclusions he reached. The respondent has failed to make good this aspect of his notice of contention.
In relation to contributory negligence, the respondent asks that a moderate degree of contributory negligence be found. The primary judge gave careful consideration to this aspect of the case in his judgment (at [123]–[126]).
In the ultimate, there was no suggestion that the accident happened because of a failure of the braking system of the vehicle. There was no suggestion that the vehicle was not properly maintained. The truck had been regularly serviced and its brakes had been checked the week before the accident. At the end of his discussion on the point, his Honour said (at [126]):
“I have already accepted the plaintiff’s version of the circumstances of the accident. There was nothing in that account that suggested any lack of care on the part of the plaintiff. In fact the evidence is to the contrary. The plaintiff walked down the roadway first to see the route he had to follow. He took the advice of the previous driver to reverse down in an endeavour to keep his vehicle to the southern or upper side of the road. He had the assistance of his father to try and guide him down the road. He drove at a very slow speed and was careful to ensure his brake pressure did not [fall] below that which was safe. In all the circumstances, it is difficult to see what else he could or should have done. In my view, the plaintiff was not guilty of any contributory negligence.”
There is nothing in the respondent’s written submissions on this point that warrants a finding that his Honour fell into error on this point. I would find that this aspect of the notice of contention has not been established.
I consider that the appeal should be dismissed and the notice of contention filed by the respondent upheld on the one ground only, namely, that relating to breach.
I propose the following orders:
Appeal dismissed.
The appellant to pay the respondent’s costs of this appeal.
So ordered
Reported by ME SHELDON Solicitor