Supreme Court New South Wales

• Medium Neutral Citation: Sharp v Emicon Pty Ltd [2014] NSWSC 1072
• Hearing dates: 21 - 24 July 2014
• Decision date: 12 August 2014
• Before: Harrison J

Decision

1. Judgment for the plaintiff against the second defendant for $726,624.

2. Judgment for the third defendant.

3. Dismiss the cross-claims between the second defendant and the third defendant.

4. Direct the parties to provide submissions on the question of costs, including the questions of whether or not the second defendant should pay the plaintiff's costs, whether or not the plaintiff should pay the third defendant's costs, and whether or not the second defendant should indemnify the plaintiff with respect to any costs that the plaintiff may be ordered to pay the third defendant.

• Catchwords: TORTS - industrial accident - negligence - where carpenter injured in fall from defective scaffold - whether condition of scaffold causally related to fall - whether breach of duty by employer in failing to instruct plaintiff not to climb on scaffold or in failing to detect or warn of defect or associated danger - whether scaffolder in breach of duty by failing to erect or repair scaffold - whether defect caused by third party - whether plaintiff guilty of contributory negligence
• Legislation Cited: Civil Liability Act 2002; Workers Compensation Act 1987
• Category: Principal judgment
• Parties: Jarrad Sharp (Plaintiff); Emicon Pty Ltd (First Defendant); Coastwise Constructions Pty Ltd (Second Defendant); Staiger Pty Ltd (Third Defendant)
• Representation: Counsel: F D Curran (Plaintiff); R Cavanagh SC (First Defendant); I Todd (Second Defendant); W Reynolds (Third Defendant); Solicitors: Carters Law Firm (Plaintiff); Hunt & Hunt (First Defendant); TurksLegal (Second Defendant); Meridian Lawyers (Third Defendant)
• File Number(s): 2011/302453
• Publication restriction: Nil

Judgment

1 HIS HONOUR: Jarrad Sharp sustained spinal fractures in the course of his employment when he fell from scaffolding in September 2008. He was at that time affixing aluminium guttering to the fascia boards of a building, working alone from a platform approximately five metres above the ground. In order to retrieve a tape measure that had dropped into the eave space above the soffit, Mr Sharp stood upon a horizontal scaffolding rail. In the course of doing this, the rail moved and Mr Sharp lost his balance, causing him to fall head first through unlined roof timbers into a stairwell void and onto a concrete floor below.

2 Mr Sharp originally sued three defendants. The first defendant was the occupier of the site. The claim against that defendant was dismissed by consent following cross-examination of Mr Sharp by counsel for that defendant. The second defendant is Mr Sharp's employer. The third defendant is the company that erected the scaffolding in question.

3 It is central to Mr Sharp's case against Staiger, and to a lesser extent against Coastwise, that the scaffolding rail upon which he stood was not secured at one of its ends, thereby permitting it to flex or bend. In support of his contentions in this respect, Mr Sharp relies upon a series of photographs that show a top rail that is clearly not attached to any adjacent vertical member. It is uncontested that these photographs depict the state of the scaffolding at the time of Mr Sharp's fall. The evidence otherwise confirms, and I find, that in such configuration the rail could have distorted under sufficient load, such as Mr Sharp's weight, but that it would have remained firm or stationary if it had been correctly secured at both ends. However, there is a factual dispute concerning whether or not the rail in question was installed in its unsecured state by the scaffolders or was somehow or for some reason detached at a later time without their knowledge.

4 The accident was thoroughly investigated by the police and by WorkCover. The photographs to which I have already referred were taken for that purpose. Mr Sharp told investigators to whom he spoke that he had stepped on the middle rail, which was properly secured, but he did not mention the upper rail, which was not. Indeed, his original statement of claim proceeded upon that basis and even Mr Burn, the expert retained by Mr Sharp for the purposes of this case, provided an opinion based on the same assumption. Regrettably, and inexplicably, Mr Burn was not shown the photographs and proffered no opinion about the status or condition of the scaffolding that they depicted.

How did the accident happen?

5 It is obviously critical, if possible, to determine precisely what happened. Some general and uncontroversial conclusions can be drawn. In my opinion the evidence generally and uncontroversially establishes at least the following things.

6 Mr Sharp was required to affix aluminium guttering members to the fascia of the building. He used a hammer, tin snips and a tape measure for this purpose. He worked from a scaffolding platform so that the fascia of the roof structure was at about his chest height. His work did not require him to operate from a position higher than the scaffolding platform upon which he stood, and he was therefore not provided with any equipment to assist him to do so.

7 It was Mr Sharp's custom to rest his tape measure on one of the roof timbers beyond the fascia he was working on when it was not being used to measure the aluminium pieces. After nailing some lengths of guttering onto the fascia, Mr Sharp noticed that his tape measure had fallen into the well of the eave, and onto the fibro cement sheets that formed the upper surface of the soffit. The tape measure in that location was beyond his reach when he remained standing on the platform. Accordingly, in order to retrieve the tape measure, Mr Sharp needed to lift himself higher. He therefore stood on one of the rails of the scaffolding structure immediately to his right. In the course of, or shortly after, doing so he fell through the soffit between the roof timbers and into the stairwell void. Mr Sharp's fall would appear to have occurred at a distance of at least 600mm from the fascia, as the fibro cement soffit was still intact within that dimension.

8 That description of what occurred is intentionally anodyne. It neither accords entirely with the version Mr Sharp obviously gave to those who prepared his original statement of claim, to which he effectively adhered in his evidentiary statement dated 20 November 2012, on the one hand, nor with the version that he ultimately embraced in evidence before me, on the other hand. (Mr Sharp's explanation for the differing versions is referred to below). However, as there were no witnesses to the accident there is no supporting or competing first hand account of what actually happened. It is therefore possible that neither of Mr Sharp's competing accounts of what took place is entirely accurate. A careful assessment of his reliability, in combination with any inferences that are otherwise available from all of the other evidence, is therefore critical.

9 Mr Webster is a WorkCover investigator who attended the scene of the accident shortly after it happened. Mr Sharp had by then been removed from the scene and was in the care of medical specialists. Mr Webster spoke to Robert Sharp, who is Mr Sharp's brother and who was his then employer. Mr Webster produced a report that included the following details:

"I was advised that [Mr Sharp] was working alone at the time of the incident, however his brother was in close proximity but did not witness the actual event and neither did anybody else on site.

[Mr Sharp] was working off a scaffold deck approx. 1 metre in height below the roof timber he was installing cladding onto. It was reported that [Mr Sharp] may have leaned out over the roof timbers for some reason, over balanced and fell head first onto the landing below. However, this would appear to be physically impossible as the persons body length would have to be excessively long. The distance between the roof timbers through which [Mr Sharp] fell is approx. 450mm.

...

During site inspection observed that scaffold on site had a number of defects for example missing handrails, toeboards, gaps between scaffold deck and building structure. Observed handrails installed elsewhere on site had no midrails, not secure at base and did not provide adequate fall protection."

10 Mr Webster was able to speak to Mr Sharp by telephone four days later. He reported upon that conversation as follows:

"Mr Sharp confirmed his details additionally, that he was working alone off the scaffold installing metal cladding to front of fascia timbers, his brother was nearby.

He is unable to recall events only that he reached into the timber roof area to retrieve his tape lost balance and fell through timbers and cannot remember anything else."

11 Mr Webster's recommendation was as follows:

"[Mr Sharp] appears to have acted on his own accord by accessing the roof timbers from which he fell. The work being undertaken did not require him to access the roof level and a scaffold had been provided for the work of installing the metal cladding to the timber fascia. [Mr Sharp] is unable to provide any further information about the incident and there are no direct witnesses to the event."

12 It should be noted that Mr Webster recorded his conversation with Robert Sharp in his notebook, which became evidence before me. It records a version that is slightly different to other references in his report. Those differences are probably inconsequential but are set out below for comparison as follows:

"[Mr Sharp] fell from roof area through timbers onto concrete approx. 5.3m below at top of stairway landing, while fixing gyprock to underside of timbers. It appears [he] fell through between timbers while leaning out from scaffold over top of timbers falling on his lower back onto concrete landing on level 2."

13 The amended statement of claim was filed on 13 June 2013. To the extent that it pleaded a cause of action against the first defendant, it did so in the following terms:

"3. On 22 September 2008 the plaintiff was undertaking carpentry work on the said site in the course of his employment with Coastwise Constructions Pty Ltd.

4. While the plaintiff was working on a scaffold deck on the second level, one metre below the roof timber onto which the plaintiff was installing cladding, the plaintiff fell off the scaffold deck down a distance of 5.3 metres onto a concrete stairway landing below."

14 The purpose of the amended statement of claim was to join the second and third defendants. Without apparently recognising or appreciating the effect of those paragraphs, the document proceeded to plead a case against the second defendant as follows:

"11. On 22 September 2008 the plaintiff in the course of his employment was working on the second level of a building site at 112 Majors Bay Road, Concord, NSW when the mid rail of a scaffolding deck gave way causing the plaintiff to topple and fall down 5.3 metres to a concrete landing below and as a result, the plaintiff has suffered serious injury loss and damage."

15 The case pleaded against the third defendant was in these terms:

"26. The plaintiff, while working on the said scaffolding for the within [sic] second defendant on 22 September 2008 did fall from the said scaffold and has thereby suffered injury loss and damage."

16 Mr Sharp had on 20 November 2012, in the period between commencing the proceedings and amending the claim, signed a statement setting out what he said had happened to him when he fell. That unamended statement ultimately, and somewhat curiously, was tendered by Mr Sharp as his evidence in chief in the proceedings, subject to some further oral evidence. It contained the following paragraphs:

"4. On 22 September 2008 the defendant company commenced work at a building project being a residential/commercial development at 112 Majors Bay Road, Concord which project was under the management, care and control of Emicon Pty Ltd as head contractor. On 22 September 2008 I was directed to commence working on the second level of the development installing fascia to the roof adjacent to a stairwell opening. To install the fascia I had to stand on a scaffold deck that had been erected and which was about 1 metre below the roof timber onto which I was required to install cladding. The roof was about 5.3 metres above a stairwell landing with completely open space in between. 22 September 2008 was the first time I had worked in this area of the building. I had had nothing to do with the erection of the scaffolding. This was not the role of trades and other workers on site once the scaffolding had been put up. I would always look to see the scaffolding was connected and stable but as my work had to be done at some pace I was not told or taught to check every scaffold connection and to test all railings comprising the scaffolding.

5. I went onto the scaffolding deck on the second level above the open landing and the scaffold appeared to look normal to me. I then commenced to install the fascia as required. As I stood on the scaffold deck the fascia to be installed was at about chest height in front of me. The fascia installation was a repetitive process. Each fascia plate had to be put correctly in position and this required measuring a distance from one point to another for each plate. I was using a builder's retractable measuring tape to do this. Before and after taking each measurement I would put the tape measure down on an eave and then nail the fascia into position. I then nailed a number of fascia in this process and then went to pick up my tape measure to measure again. All the eaves were inclined or angled downwards. When I went to retrieve the tape measure I observed it had moved to be just out of normal reach. I had to lean onto the mid rail of the scaffold and reach through to grasp the tape measure. As I placed some slight body weight onto this rail I felt it wobble and give way and I then fell forwards and downwards onto the landing about 5.3 metres below me landing on my back on the concrete surface. I was not wearing any harness. I had not been told to and did not see the need to as the scaffold looked safe and felt safe underfoot as I worked on it. We only wore harnesses when there was no scaffolding in short term situations as harnesses are cumbersome and can tangle and snag and be a danger in themselves when worn all the time."

17 Mr Sharp gave evidence on the first day of the hearing. Limited for present purposes to the incident in question, his evidence in chief was as follows:

"Q. Taking you back to the accident itself, on the day of the accident, or the following day, were you contacted by anybody?

A. Around that time, I was contacted by the police and a WorkCover inspector, I believe.

Q. And how was your recollection of events at that time?

A. Pretty foggy.

Q. Over time, did your recollection of what happened on the day increase?

A. Yes.

Q. Or improve?

A. Yes.

Q. In what way?

A. It had become more clear that I had been thinking about the accident to some extent, but not too much because of the trauma, but I had to understand what happened, and I know exactly what I did. I know what happened on the day of the accident now.

Q. I think you said, 'I know exactly what I did'?

A. Yes.

Q. What did you do?

A. I stood up onto a rail to retrieve my tape from the eave lining onto a rail, and I as did that, the rail bounced and pushed me upwards and forwards over onto the eave lining."

18 Mr Sharp was then shown a series of photographs taken by the WorkCover investigators on the day of the accident. These became crucial evidence in the events that have occurred. Their significance was apparently not appreciated when Mr Burn, an expert retained by Mr Sharp to offer opinions on the issue of liability, was briefed to do so. Be that as it may, Mr Sharp then described the nature of his work and how he went about it on the morning of 22 September 2008. He then gave the following further evidence:

"Q. At some point did you put your tape measure down and then later require it?

A. Yes, I did.

Q. When you sought to acquire your tape measure again from what position did you seek to retrieve it?

A. From up over the top of the fascia I stood up on to the rail and leaned to grab it and as I did that there was a bit of a spring in the beam and it pushed me upwards and over the top and I hence go head down."

19 Mr Sharp then marked on some of the photographs the position upon the scaffolding rail that he placed his foot when he stepped onto it immediately before his fall. He then said this:

"Q. If you placed the measuring tape on the rafter whilst standing on the scaffold level why was it necessary to stand on the rail this time to retrieve it?

A. It had moved from banging around the timber plates, bounced off and slid down the eave lining.

Q. Does that mean on the upper surface of the soffit?

A. Yes."

20 Mr Sharp's evidence in chief on this topic concluded with the following evidence:

"Q. When you stepped onto the railing you told us what happened, what did you expect to happen?

A. I expected it to be firm and not move at all.

Q. Have you ever encountered scaffolding railings that were not secure and would not move?

A. They have always been secured on all the other times that we have used them and seen the scaffolding.

...

Q. What did you then do to make the further measurements?

A. I went for my tape in my nail bag and it wasn't there, and I...

HIS HONOUR

Q. Sorry, just slow down.

A. I reached for my tape in my nail bag and realised it wasn't there, and proceeded to locate it. Once I located it, I boosted myself up by using the rail to retrieve it."

21 Mr Burn conferred with Mr Sharp before preparing his expert report. Mr Burn said that he understood from the conference a number of things that included the following:

Mr Sharp had measured down using his tape measure then placed the tape on the eave flat prior to securing the fascia by nailing

After proceeding a distance nailing the fascia in place Mr Sharp returned to retrieve his tape but found it was just out of reach having slid across the eaves

Mr Sharp attempt [sic] to boost himself using the scaffold mid rail to reach the tape

The mid rail wobbled under his weight as the end of the rail turned out not to have been secured to the upright at the end

The wobble was sufficient to throw Mr Sharp off balance resulting in him falling forward headfirst through the eave rotating over the fascia end timber.

22 Mr Sharp was cross-examined by Mr Reynolds of counsel, who appeared for Staiger Pty Ltd, the company that had erected the scaffold, about what he had told Mr Burn. Part of that was as follows:

"Q. You told Mr Burn that the mid rail wobbled under your weight as the end of it was not secured and the wobble was sufficient to throw you off balance.

A. Yes.

Q. You didn't tell Mr Burn that it caused you to bounce upwards, did you?

A. No a 'wobble' and a 'bounce' are similar things to me.

Q. 'Wobble' is one thing, Mr Sharp, but what you are saying now is that the railing that you had stood on had some form of trampolining effect forcing you to go up into the air, isn't that correct?

A. Yes.

Q. You didn't say anything about that to Mr Burn, did you?

A. No.

...

Q. But what I'm saying to you, Mr Sharp, is that you didn't tell Mr Burn that the rail forced you effectively up into the air. What you told Mr Burn was that it threw you off balance?

A. Yes.

...

Q. Did you step on the mid rail first or did you step directly onto the top rail?

A. I believe I stepped onto the mid rail first and then the top.

Q. You put one foot on the mid rail, did you?

A. Yes.

Q. Do you remember that or are you just making this up as we go?

A. So that's the only way I could have got there. So, yes, to step up onto the middle one and then the top one."

23 Mr Sharp said this a little later on:

"Q. After you've got one foot on the mid rail what did you do then?

A. I held on to the fascia and quickly got my other foot on there to lean over to grab what I needed to grab.

HIS HONOUR

Q. Start again. You put one hand on the fascia?

A. On the fascia, then stepped up on to the top rail, then quickly followed by my second foot and then proceeded to lean over the fascia to retrieve my tape and at that time.

REYNOLDS

Q. Stopping you there for the moment. At one point you had one foot on the mid rail and one foot on the top rail?

A. Yes.

Q. And you were holding on to the fascia at that point?

A. Yes.

Q. With one hand or two hands?

A. One hand.

Q. When you were in that position you told us before that the fascia was about chest height, when you were in that position where was the fascia relative to your torso?

A. Around my waist.

Q. Was the upper part of your body then over the fascia?

A. No, it wasn't leaning over at that point.

Q. When you put one foot on the top rail and one foot on the mid rail what did you notice about the top rail?

A. It didn't move because I had still quite a bit of weight on the bottom one and my hand was taking a lot of weight through the to support myself.

Q. The answer is that, when you had one foot on the top rail and one foot on the mid rail...

A. Yes.

Q. ...did you notice anything about the top rail?

A. No.

Q. It hadn't been moving while you were in that position?

A. No.

Q. When you then moved your weight to transfer it on to the foot that was on the top rail

A. Yes.

Q. What happened then?

A. I had I used when I went to lift my second foot up I grabbed the top of the timber beam with my right hand to support myself and then going on that, as I went on and when I reached it's moved.

Q. Moved what?

A. The rail moved downwards and upwards and caused me to move off the rail.

Q. So it was like a trampoline, it went down and went back up again?

A. It bounced a little bit and bounced up, like, there was a little bit of weight and then it's just bounced and then it was all over before I knew it.

Q. How much did it move?

A. I'm not sure; it was enough to throw me.

Q. Throw you over?

A. Yes."

24 Finally for present purposes, Mr Sharp's evidence was in these terms:

"Q. It was your intention, wasn't it, to propel yourself over the fascia so you could reach your tape?

A. I was holding myself then, so I could reach and grab it.

Q. Going slowly.

A. I was holding myself there to reach out to go grab my tape.

Q. But weren't you trying to propel yourself up to reach this tape that was out of reach?

A. I was just trying to get myself level there and so I could lean over to grab it.

Q. But do you see, how did you determine where the tape was situated before you started climbing on the scaffolding?

A. Because I was at waist height or around chest height and I could see where it was, looking over the top.

Q. Did you try to reach it from that position?

A. Yes.

Q. That was while you were standing on the platform?

A. Yes.

Q. You couldn't reach it?

A. No, I was out of reach.

Q. You had to propel yourself up to a higher point so more of your torso would be above the fascia, isn't that right?

A. Yes."

25 The evidence otherwise suggests that the soffit over which Mr Sharp travelled, to the gap in the timbers through which he fell, was approximately 600mm wide. Mr Sharp said in his evidence that it was between 400mm and 450mm. However, the photographs and other evidence about it suggests that this was an underestimate. For example, the WorkCover materials contain a series of sketches of the scaffolding set-up and the adjacent building structure, which contain measurements indicating that the soffit was 600mm from the edge of the fascia on the south to the soffit's northern edge. Mr Sharp said that he fell through soffit material, presumably fibro cement that was affixed beyond the undamaged edge of the soffit that remained in place after his fall. This is best depicted in two photographs forming part of exhibit "B" taken from the position where Mr Sharp landed looking directly up to the open space in the timbers through which he fell, and showing the underside of the scaffolding platform upon which he was working immediately beforehand. Those views also make it clear that, in contrast to the impression given by other photographs taken looking down or across the roof timbers from the position occupied by Mr Sharp before his fall, the gap between the timbers was clearly large enough to permit him to pass through relatively unimpeded.

26 There appear to be at least three difficulties that have to be overcome before this evidence is capable of explaining on the balance of probabilities just what happened. First, the question of Mr Sharp's reliability, having regard to his differing accounts of what transpired. Secondly, the question of whether these differing versions are mutually exclusive or actually reconcilable, as well as the related question of whether any difference between them materially informs the process of ascertaining the truth in any event. Thirdly, the overwhelming sense of unease that is arguably generated by either version of these extraordinary events, having regard to the uncontradicted evidence about the layout of the site and the dimensions of the structures involved.

27 Concerning the first issue, Mr Sharp gave evidence about it. That evidence is extracted at [17] above.

28 Mr Reynolds also asked Mr Sharp about this:

"Q. Now, you said to us that, sometime after you had this accident, you were able to recall in more detail and more accurately what, in fact, took place?

A. Yes.

Q. Do you remember when it was that you were able to have that better memory?

A. A few weeks after the accident and after I was off a lot of drugs, painkillers, I could think more clearly.

Q. So, you were out of hospital?

A. Yes.

Q. And had you returned to work by the time you had the improvement in your memory?

A. No.

Q. You were still at home recuperating?

A. Yes. I had plenty of time to think about what had happened.

Q. Did you talk to your brother about what had happened preliminary to you getting the better memory?

A. No. He had asked what happened, and I said I remember reaching for something. That is pretty much what I was able to piece together.

Q. So, this is something that came to you independently?

A. Yes.

Q. And, then, from that moment in time, you have a clear memory as to what took place?

A. Yes.

Q. And there was no doubt, when you had the clarity of your memory, that the accident occurred by you stepping onto the top rail and having your fall from that position?

A. Yes. "

29 Mr Reynolds continued to question Mr Sharp about his recollection:

"Q. And do you remember what you told the WorkCover authority people when they asked you to recall what had happened?

A. Something about reaching for a tape, and that is all I could remember at the time.

Q. Do you remember saying that you couldn't remember, only that you think you had reached over the facia to recover your tape and had leaned over the timbers and lost your balance and fell?

A. Something along those lines, yes.

Q. Do you remember saying to them that you were able to confirm that you had fallen head first and that you were trying to remember how it had happened but you could not?

A. Yes. It was just still a bit of a blur.

Q. After you had the better recollection of what had happened, while you were at home recuperating, did you contact the WorkCover people a second time to inform them that you had now got a better memory as to what had happened?

A. No, I believe that was the only time I spoke to them."

30 Mr Reynolds inevitably took Mr Sharp to his 20 November 2012 statement and asked him the following questions:

"Q. Then you nailed a number of fascia in this process and then you 'went back to pick up my tape measure to measure again'. That is what you are saying in the statement?

A. Yes.

Q. 'I went to retrieve the tape measure. I observed that it had moved to just out of normal reach. I had to lean on to the mid rail.' That's what you say in your statement?

A. Yeah.

Q. At that stage were you meaning, if you look again at this photograph that his Honour was directing your attention to, there's two rails; one, you put the cross on which is the top rail?

A. Yep.

Q. And another rail below that, isn't there?

A. Yes.

Q. That was the mid rail that you were referring to when you gave your statement in November 2012, isn't that?

A. No, it was the rail that was mentioned, but it was misinterpreted. I was meaning the higher one up.

Q. That's the mid rail, isn't it?

A. Yes.

Q. The one below where you put the cross on?

A. Yes, it is.

Q. You say in your statement that you 'felt it' being this mid rail - 'wobble and give way and fell forwards and downwards', is that correct?

A. Yeah, it wobbled and that flung me and I bounced over.

Q. You see, there's nothing in the statement of November 2012 that refers to you bouncing over anything, is there?

A. No, I don't believe so.

Q. No. That is something that you've recalled since November 2012, that bouncing upwards and over?

A. No, it was just missed in the statement.

Q. Sorry?

A. It was probably missed in the statement with all of the other stuff that was going on at the time."

31 Mr Reynolds also took Mr Sharp to his conference with Mr Burn, and to the version of events given by him to Mr Burn upon which he expressly relied:

"Q. In that conference you say that you attempted to boost yourself up using the scaffolding mid rail to reach the tape?

A. Yes.

Q. Why did you tell him the 'mid rail' then if it was the top rail that you now want to direct attention to?

A. I wasn't a hundred per cent sure on which rail it was, I had in my belief that it was the mid rail.

Q. Is this the belief that you had when you were back home recuperating?

A. Yes.

Q. When did you change your belief again from the mid rail to top rail?

A. After more careful thinking about it and procrastinating [sic] over it and everything else I came to the conclusion that it couldn't have been the mid rail.

Q. Presumably this further wrestling that you talk about must have happened after November 2012, is that correct?

A. November 2012?

Q. When you gave your statement about the mid rail.

A. At that time I was still in between the two and they said I needed to be more specific.

Q. When since November 2012 have you firmed or settled on it was the top rail?

A. Still around that point in time.

Q. What point in time, November or February?

A. Around when the statement was done.

Q. Why didn't you do a supplementary statement at that stage?

A. I didn't know how to do that."

32 It will be recalled that Mr Sharp did not tell Mr Burn that the rail forced him effectively into the air. He told Mr Burn that it threw him off balance.

33 In my assessment, Mr Sharp's frank concession that he came to the conclusion that the rail that he stepped on "couldn't have been the mid rail" is a truthful statement of why he altered his version of what happened, rather than a self-serving shift in his evidence borne of a recognition or realisation that it favoured his case. Mr Sharp did not strike me in the slightest way as a person who was prepared to give false or coloured evidence. Indeed, there are several examples of evidence given by him that reflect his somewhat guileless approach to the whole process. It is not without importance in my opinion that Mr Sharp's case appears to have been prepared and conducted for a considerable period of time either without the benefit of the photographs in exhibit "B", or without a professional or forensic advertence to their significance. Certainly no one appears to have shown them to Mr Burn until the day he gave his evidence. As astonishing as that revelation appears to be, it is in my view entirely consistent with no one else paying any attention to what the photographs clearly reveal. That includes what appears to be a total failure to ask Mr Sharp for his comments upon them. Additionally, whoever was responsible for Mr Sharp's various statements of claim could not have had the slightest regard for or understanding of the photographs.

34 For present purposes, the photographs show that the top scaffolding rail, ultimately marked by Mr Sharp, was detached from or unconnected to any supporting structure or upright scaffolding member at its northern end, and was conspicuously left free to move in all directions around the fulcrum or axis created by its attachment to the scaffolding star on a vertical scaffolding member at its southern end. Mr Sharp's descriptions of the rail wobbling, of losing his balance or being propelled by the rail are entirely consistent with him having stood on the top rail and not on the firmly attached mid rail. In my view, the change in Mr Sharp's description of what happened from a version that identified the mid rail to one that identified the top rail is no more and no less than a correction having regard to the fact that the photographs were only shown to him a considerable time after he had provided his original version. Mr Sharp was not so much inappropriately improving his original story as bringing other aspects of his recollection into line with a common sense assessment of what he considered must have occurred. If that is to be labelled as a reconstruction, it is not in my opinion sinister or dishonest.

35 With respect to the second issue, for similar reasons, the competing versions are only theoretically mutually exclusive. In my opinion, any version given by Mr Sharp, or proffered or pleaded on his behalf, suggesting that the mid rail was inculpated in the events that occurred, is simply and self-evidently wrong. Having regard to the height of the fascia, and the distance that Mr Sharp was required to travel to the point where he fell through the roof timbers, it is wholly improbable that he could have launched himself to that unfortunate result from the stationary mid rail. Although no one asked Mr Webster about it when he gave evidence, it seems clear to me that he was in fact adverting to this difficulty in his WorkCover report when making the awkwardly worded suggestion that it would have been "physically impossible" to lean out and fall "as the person's body length would have to be excessively long". The inference that is clearly available, with an understanding informed by reference to the photographs, is that what happened to Mr Sharp was no longer physically impossible if the top rail is taken as the starting point.

36 The evidence about what happened to Mr Sharp is not robust, to the extent that he is the only witness and his recollection is admittedly frail. However, unless I am unable to believe or accept his account, or there is evidence that suggests that it is obviously wrong or inherently improbable, the version to which he now adheres is the only one available. Certainly no challenge was or could ever have been made to Mr Sharp's version based upon a competing recollection.

37 So far as the third issue is concerned, I am satisfied that Mr Sharp cleared the soffit and fell through the roof timbers beyond. Despite the distance that he was required to traverse, the suggestion of him having done so is not fanciful or out of line with common experience. I am not satisfied that the top scaffolding rail operated to produce a trampolining effect that is referred to in the evidence. However, I am satisfied that Mr Sharp stood upon it and that it was unstable. Mr Sharp's references to the rail wobbling are consistent with precisely such instability and appear to predate any appreciation of the state of the scaffold shown in the pictures. That is for the reason, already discussed, that Mr Sharp's version of a wobbling rail was originally given in the context of the middle rail, which could not have wobbled. The top rail is also very close to the top of the eave, which would not have provided a secure barrier capable of impeding Mr Sharp's momentum across the soffit, whereas the mid rail could well have done so.

38 I am therefore satisfied that Mr Sharp fell through the roof timbers and over the still intact soffit having lost his balance in the course of climbing onto or when standing, or attempting to stand, upon the top unsecured scaffold rail.

Was Coastwise at fault?

39 The starting point for this inquiry is the particulars of negligence that Mr Sharp alleged against his employer. Even despite repleading the statement of claim as recently as the second day of the hearing, the document persisted with a series of allegations that had nothing to do with the way that Mr Sharp was injured. These were primarily allegations that the scaffolding had no handrails, had gaps between the scaffold deck and the building structure and had not been properly inspected. There is little doubt that the area in which Mr Sharp was required to work was unsafe for these and related reasons, but these unsafe aspects of that area were not causally related to his fall.

40 Interestingly, the significant basis upon which Coastwise appears to have breached its duty to Mr Sharp were exposed in the course of his cross-examination by Mr Cavanagh SC for Emicon. That was as follows:

"Q. Prior to starting on this job, did your employer give you any instructions as to how to use the scaffolding?

A. No.

Q. Did the employer take you around the premises and show you where all the scaffolding was that you were required to use?

A. No, it was straightforward.

HIS HONOUR

Q. What was that answer?

A. No.

CAVANAGH: It was straightforward.

WITNESS: It was straightforward. All the scaffolding was pretty self-explanatory that I had to use.

CAVANAGH

Q. You thought it was self explanatory, did you?

A. Any jobs like scaffolding are laid out the same.

Q. Yes, but what I'm suggesting to you is that you thought it was self-explanatory. That's what you're saying, isn't it?

A. From what I would say, yes.

Q. But your employer at the present time did not give you any instructions about the use of scaffolding, is that right?

A. No.

Q. Did the employer take you around the various pieces of scaffolding that you were required to stand on, and demonstrate how you should use the scaffolding?

A. No.

Q. Did the employer give you any instructions about not standing on any railings when using the scaffolding?

A. No.

Q. Did the employer give you any instructions about where you should place your tape measure whilst performing your work?

A. Not specifically, no.

Q. So is this right, that you were inducted by the first defendant on the day before the accident, had a safety induction by the builder?

A. I believe it was a foreman.

Q. On the next day, you turned up and you had a bit of a toolbox meeting with your employer?

A. Yes.

Q. Then you just went to work, is that right?

A. He instructed us on what areas to work on the building, and what needed to be done.

Q. So he told you what you had to do but basically gave no instructions as to how you should do it, is that correct?

A. He told us to cut the materials to size and nail it on to the timber to cover the cladding or cover the timber beams.

Q. But gave you no instructions about safe use of the scaffolding, did he?

A. No.

Q. When you stood on that railing, you had no idea, did you, that the railing was unsafe? Is that what you're saying?

A. No, I expected it to be secure, and to be able to take my weight when standing on it.

Q. Didn't your employer give you instructions that if you were going to stand on the railing, perhaps you better shake it or test it beforehand?

A. No.

Q. You weren't told that?

A. No.

Q. You'd been given no course during the four years of employment by your employer about safe use of scaffolding. That's what you said, isn't it?

A. Not that I can recall.

Q. Were you accustomed to following your employer's instructions?

A. Yes.

Q. If the employer had told you what to do, even though it was your brother, you would have followed his instructions, would you?

A. Yes.

Q. If he told you, 'Don't stand on the railings', you would have obeyed him, would you?

A. Yes, I would have.

Q. You hadn't been up on this scaffolding before?

A. Not in that area of the building.

Q. You didn't personally make any inspection of the scaffolding to see whether it was safe to use, did you?

A. No, I relied on the certificate of entrance to the scaffold, and the supervisor and the foreman to inform me that it was safe to use.

Q. And your employer, you rely on your employer as well, do you?

A. Yes."

41 Unsurprisingly, the following particulars of negligence on the part of Coastwise were added to those against Coastwise following that cross-examination:

"(xv) Failing to instruct [Mr Sharp] not to stand on scaffold rails.

(xvi) Failing to instruct [Mr Sharp] as to the dangers involved in standing on scaffold rails."

42 In my opinion the method adopted by Mr Sharp to retrieve his tape measure was unsafe. It carried with it the foreseeable risk of injury to him in the circumstances. Mr Sharp should have been warned not to stand upon the top scaffold rail in any circumstances, even if it had been secured, as it should have been. The area within and from which Mr Sharp was required to perform his work was the scaffold platform, protected by rails to prevent falls. Scaffolding structures become potentially useless as safety barriers if the worker who is to be protected by them moves outside of the protected area. Standing on a scaffolding rail immediately compromises the safety that is otherwise provided. Mr Sharp was not warned of that danger, as he should have been, even if on one view it is obvious. Robert Sharp did not suggest that such a warning had been given.

43 Furthermore, two of Mr Sharp's original particulars of negligence were in these terms:

"(v) Failing to inspect and examine the scaffolding after its erection to ascertain that the scaffolding was safe, complete, had no defects and complied with the applicable regulations.

(xiii) Failing to see to it that the scaffolding rail was secured to the scaffolding upright at the end."

44 As the photographs clearly reveal, the scaffold platform from which Mr Sharp was required to work was dangerous and unsafe in a number of respects. It offered him no protection from falling on the northern and western sides of the platform, because there were no safety rails of any sort at any level in those locations. The top rail on the eastern side was present but was partly unsecured. If Coastwise had inspected this area properly before Mr Sharp was sent there to work, it would have, or at least should have, detected these deficiencies and corrected them before permitting Mr Sharp to work from that location. That should have extended to securing the unsecured top rail that was ultimately inculpated in Mr Sharp's fall. The added dangers of climbing or standing upon a rail in that condition were not obvious. Even though Coastwise was in breach of its duty for failing to warn or instruct Mr Sharp not to stand upon top scaffold rails of any sort, that duty was enhanced because of the unstable and particularly unsafe nature of the unsecured rail.

45 Mr Sharp also contended that Coastwise was in breach of the duty that it owed him as an employee to take proper care for his safety by failing to provide him with a safety harness to secure him against the risk of falling from a height. I have already concluded that Coastwise was in breach of the duty that it owed Mr Sharp by failing to instruct him not to stand or climb upon scaffold rails. Mr Sharp had no need for a safety harness if he had been given that instruction and he had complied with it. Nor would the danger of falling from an otherwise unsafe work platform have required the provision of a harness. That is because the dangers that the workplace presented, which on this analysis theoretically might have energised the requirement to provide a safety harness, should in any event have earlier prompted either a complete prohibition upon working from an unsafe platform, or the rectification of the defects before work commenced. Moreover, the circumstances of the fall that injured Mr Sharp were unrelated to any risk that would have suggested this earlier need for a safety harness, assuming the existence of an obligation to provide such a device, and were therefore not causally related to Coastwise's failure to do so.

46 Coastwise breached the duty it owed to Mr Sharp as his employer to take proper care for his safety.

Was Staiger at fault?

47 The case pleaded against Staiger was based upon the proposition that the unsafe scaffold had been constructed in that way by it, and that its unsafe condition at the time that Mr Sharp was injured was not the result of later interference by others. To that extent the particulars of negligence are all more or less to one effect, that Staiger failed to erect or install or provide scaffolding that was safe and suitable and that complied with applicable regulations. The fact that at the time of Mr Sharp's fall, the scaffolding did not have proper handrails, or that at least one of them was partly unsecured, was uncontroversially accepted as improper or inadequate and a breach of regulations dealing with what was required. There were also allegations that Staiger had failed to inspect the scaffold in order to ascertain that it remained safe, so that any original failures to construct it properly, or later amendments to it by others, could have been corrected.

48 The principal of Staiger was Mr Frank Ackaoui. He gave evidence before me. Mr Ackaoui was a licensed scaffolder with 27 years' experience. His company erected the scaffold in question in accordance with a contract to do so entered in May 2008. The work commenced a few days later.

49 From time to time thereafter, following the erection of the scaffolding, Staiger's employees were called back to the site to effect amendments to the scaffold. These were necessary as the building progressed, and the corresponding shape and requirements of the scaffolding structure altered accordingly. A diary maintained by Mr Ackaoui contains entries that appear to record the days when his workmen returned to the site for this purpose. The two occasions preceding the accident when this occurred were 15 and 18 September 2008. On the earlier of those occasions, the diary records that "Paul build 2 bays Concord half day." On the later occasion the diary records "Concord build extra bays and fit scaff."

50 Mr Ackaoui's original statement recorded the following:

"21. On or around 18 September 2008, Paul or Claude Saab from Emicon, I cannot remember who, rang me and told me that someone had interfered with the scaffolding and Emicon wanted F & M Scaffolding to fix it. Emicon also wanted extra bays erected. Michael and I went on 18 September 2008 to work at the building site...

22. When the scaffolding installation is completed on a job pursuant to the head contractor's directions, I always check the scaffolding and if it is complete. I issue a Handover Certificate. In relation to the building site, either on 15 and/or 18 September 2008, I checked the scaffolding and issued such a certificate on site. I cannot locate a copy of this handover certificate in my records.

23. When we left the building site on 18 September 2008, the scaffolding was complete and in particular, the kickboards, mid rails and double handrails at the top of the scaffolding near the roofline were installed securely."

51 Mr Ackaoui gave evidence that it was common in his experience that tradesmen and other workers on building sites would alter the scaffolding for their own convenience and without reference to him. He identified the scaffold shown in the condition it was in the photographs taken on the day of Mr Sharp's accident as having been altered in such a way. His company had never been called back to repair or make good that section of the scaffolding at the site. He said that he did not issue any certificate or tag that verified the safety or suitability of the scaffold in the condition shown in the photographs. Mr Ackaoui had no notice of the condition of the scaffold shown in the photographs at any time prior to Mr Sharp's fall.

52 It is a fair analysis of Mr Ackaoui's evidence, following his cross-examination by Mr Todd who appeared for Coastwise, and by Mr Reynolds, that he made no concession that Staiger was responsible in any way for originally constructing or erecting the scaffold in its condition as found on the day of the accident, or for altering or amending it to produce the same result at a later time. It seems apparent that it had been altered, probably by cutting at least one of the upright section with an angle grinder of similar tool. That appears to have had the consequence that the star into which the unsecured top handrail would originally have fitted had been removed. Mr Ackaoui was emphatic that he would not erect or leave scaffolding in such a condition. Indeed, Mr Ackaoui theorised that the scaffolding had been cut or amended by workers who constructed the roof or the eaves that are now in place above the altered scaffold.

53 Mr Sharp bears the onus of establishing upon the balance of probabilities that the scaffolding that is inculpated in his fall was created or left in an unsafe or dangerous condition by Staiger. He has not done so. There is no evidence directly suggesting that Staiger was wanting in either respect. For example, there are no documents passing between Staiger and Emicon at any time that specifically relate to the condition of the scaffolding in the area or location in question. There are no witnesses who are able to say that Staiger was responsible for that condition. There is no inferential material that is stronger than Mr Ackaoui's denial that his company was at fault.

54 I am satisfied that the scaffolding was altered or amended following its original construction or erection by Staiger. For one thing, it is clear that one of the upright members has been cut since first put up, a fact that is wholly inconsistent with its likely condition when initially completed. Secondly, and tellingly, Mr Webster interviewed Mr Saab on the day of the accident. Mr Webster's diary note records the following:

"Mr Saab advised that scaffold was removed prior at top of landing area to allow strip out of timbers in stairway and was to be reinstated later today."

55 Mr Saab neither suggested that the scaffold had been removed by Staiger nor with its knowledge. It seems to me that Mr Saab, who was Emicon's site manager, and who would arguably have been under considerable pressure at the time of the interview with Mr Webster, might have been expected to make that plain, either when talking to Mr Webster, or otherwise in the context of these proceedings, if it were true. On the contrary, Mr Saab did not suggest in any way that Staiger had done, or failed to do, anything at all.

56 I am not satisfied that Staiger was negligent, or in breach of any duty of care that it owed to Mr Sharp, in the circumstances of this case.

Contributory negligence

57 Mr Webster referred to Mr Sharp having acted "on his own accord by accessing timbers from which he fell." Mr Ackaoui said in his statement, to which no objection was taken, that Mr Saab told him, referring to Mr Sharp, "You are fine, the guy was an idiot."

58 Mr Todd contended that if Mr Sharp managed to get himself onto the roof he conspicuously failed to take proper care for his own safety in the process. He submitted that the dangers were obvious to a qualified carpenter, who must or ought to have been aware of the fact that the soffit would not support his weight. That submission also draws strength from the proposition that Mr Sharp actually fell through or took some soffit material with him as he fell. It seems highly unlikely that the missing soffit was at the time of the accident still yet to be installed. That is because the soffit would presumably have had to be installed from below, and necessarily from scaffold erected for that purpose, which had apparently been removed some time before. The missing soffit in the confined space of the recently stripped out stairway void appears to correspond to what gave way when Mr Sharp came into contact with it. One of the photographs in evidence shows what appears to be this material in a broken condition near where Mr Sharp landed.

59 Whatever may have been the precise configuration of the soffit at the time, Mr Sharp took it upon himself to climb above and beyond the relative safety of the scaffolding platform. He also took it upon himself to step above the mid rail, from which he would clearly have had a view of the location of the tape measure for which he was searching. The only activity directly causative of his loss and damage to which he contributed was to step onto the unstable top rail. Mr Sharp's account of what occurred is that by the time he did that, it was in effect too late. That is because the top rail started to wobble, and he lost his balance and fell, as soon as he stepped onto it. His negligence must therefore be assessed having regard to his decision to climb or step onto that rail in the first place.

60 I do not consider that Mr Sharp's lack of care for his own safety can be characterised as mere inadvertence. Even though Mr Curran suggested that Mr Sharp was relevantly performing a repetitive task, which in the particular circumstances of this case I have some reason to doubt, he was not injured in the course of performing the precise task in question, but in the course of an interruption to it caused by the need to retrieve his tape measure. In addition, Mr Sharp was working at and from a location or relative safety, but from which he was liable without the exercise of proper care to fall a considerable distance. Venturing beyond the safe confines of the scaffolding platform represented a departure from his obligation to take such care for himself. The requirement for attention to his own safety in such circumstances must have been apparent, and something that directly influences the allocation of fault between the competitors for responsibility for what happened.

61 Doing the best I can, it seems to me that Mr Sharp's negligent contribution to his injuries and disabilities should be assessed at 15 percent.

Damages against Coastwise

62 Mr Sharp suffered crush fractures of his spine at L2 and L3. By 23 April 2009 the fractures were no longer visible on plain radiology and appeared to have healed. He did not lose consciousness following the fall. Mr Sharp remained in hospital for one week, wore a back brace for about three months and returned to work on light duties after about five months. By the time he saw Dr Mahony on 14 December 2009, Mr Sharp had returned to full time work as a carpenter working between 40 and 50 hours per week.

63 Examination of Mr Sharp's back by Dr Mahony showed his spinal movements to be possible but with extension restricted to about half of normal. For reasons that are totally unexplained by him, but with which there is in any event no significant disagreement, Dr Mahony expressed the opinion that Mr Sharp was then "permanently unfit for work as a carpenter." He considered that he was fit only for restricted duties not involving significant bending or lifting.

64 An assessment of the degree of his whole person impairment by the Workers Compensation Commission on 24 June 2011 assessed Mr Sharp as having a 12 percent impairment. A reassessment of that calculation was undertaken on 1 September 2011 and increased to 22 percent whole person impairment. Dr Sheehan considered on 18 November 2011 that Mr Sharp sustained a 25 percent permanent loss of the efficient use of his back compared to a most extreme case.

65 Dr Sheehan's 25 February 2014 report contained the following summary:

"Because he sustained two lumbar spine crush fractures...it should be clear that [Mr Sharp] will never be able to return to full time normal duties as a carpenter.

Likewise he has been rendered totally and permanently unfit for any job which might necessitate lifting in excess of 10kg; repetitive bending at waist level; prolonged squatting or kneeling; the regular negotiation of stairs, steps, ladders or uneven ground."

66 Associate Professor Richard Jones expressed an opinion in his 7 November 2012 report to which he specifically adhered in later reports. He described Mr Sharp's fall as producing "a potentially catastrophic injury to his back." Professor Jones was of the opinion that Mr Sharp was then "independent in his personal care and in the activities of daily living of a domestic nature albeit from time to time with discomfort." Mr Sharp did not appear to Professor Jones when examined to be in any "obvious discomfort." He also offered the following opinion:

"I believe that the job he is currently performing and as described by him is appropriate, although he should not lift weights of greater than 20 kilograms and should restrict himself to weights of a maximum of 10 to 15 kilograms. The work he describes I believe to be appropriate but one would advise him against climbing to heights and doing heavy lifting. He expresses concern about the future of his back with respect to changes that might occur with the passage of time, and indeed there may be degenerative changes around the vertebral bodies which in his latter years, perhaps from the age of 45 or 50 may cause him increasing symptoms and necessitate a job change. For the time being I would expect him to be capable of performing his current duties and would not expect those duties to significantly aggravate his back. Were the work to be inappropriate in the longer term then working as a courier driver would be appropriate or other bench related duties could be considered. Mr Sharp's relative illiteracy may compromise his capacity to undertake sophisticated clerical duties." [Emphasis added]

67 At the time that Professor Jones offered his opinion, Mr Sharp was not working full-time as a carpenter.

68 No doctors were called by anyone for cross-examination. I am confidently impelled to a conclusion that there is no significant controversy of a medical nature alive between or among the parties.

69 There was specific agreement that Mr Sharp returned to work with Coastwise and earned income in the relevant years at the following average net weekly rates:

10.02.2009 - 30.6.2009       $380.20

1.7.2009 - 30.6.2010           $689.16

1.7.2010 - 30.6.2011           $506.86

1.7.2011 - 30.6.2012           $550.06

1.7.2012 - 30.6.2013           $432.76

1.7.2013 - 30.6.2014           $421.50

1.7.2014 - 22.7.2014           $421.50

70 It was also agreed that Mr Sharp was earning $380.20 net per week when injured on 22 September 2008. He remained off work thereafter until 10 February 2009.

71 Although there was no specific agreement about comparable wages for the purposes of assessing any loss that Mr Sharp may have suffered with respect to probable future earnings but for his injuries and disabilities, evidence of comparable wages was tendered without objection. Ben Ashford gave evidence that he currently employs carpenters who are paid between $1,200 and $1,600 net per week. Alexander Morini said that he pays carpenters employed by him at the rate of between $1,400 and $1,700 net per week. Robert Sharp, Mr Sharp's brother, said that he pays qualified carpenters $1,152 net per week.

72 I consider that Mr Sharp is currently working at what is his likely maximum capacity for the remainder of his working life. As his net weekly wages since 1 July 2012 demonstrate, he has been effectively employed by Coastwise since that time on light or selected duties consistent with the limitations imposed upon him by medical specialists. The rates of pay also correlate with his earnings following his immediate return to work after the accident, which Robert Sharp agreed amounted to apprentice wages. It would appear to be to his significant credit that Mr Sharp was able to work at higher duties between 1 July 2009 and 30 June 2012, although limited to eight hours a day, five days per week without overtime. I note that it was never suggested in cross-examination to Robert Sharp that Mr Sharp was not actually earning what he was paid during that time.

73 Robert Sharp gave the following evidence:

"Q. Concerning the schedule, then, Mr Sharp. At some stage in 2010, the plaintiff made some concerted effort to try and do more work to improve his productivity, is that so?

A. Yes.

Q. You were happy to assist in that way by assigning him more work that he had been doing on the lighter and restricted duties?

A. Yes.

Q. And you also, from time to time, assigned an apprentice for him to manage, is that correct?

A. Yes.

Q. And as a result of that endeavour in 2010, his earnings did increase in that year, is that the case? Just looking at the schedule to satisfy yourself?

A. Yes.

Q. He went up from an average weekly earning of $380 to $689, but then he reduced his earnings the following year to $506.86. Those were his average net earnings for the 2011 financial year. Now, is it the situation that you formed the view that he could not manage the longer hours that were involved and the more intensive carpentry work that you were assigning?

A. Yeah. He was not earning the money and I could not afford to pay that much.

Q. But in terms of 2010, that year his earnings went up when he was doing more work and more responsible work, including the work of managing an apprentice, do you recall that?

A. Yes.

Q. But that position was not sustained, that earning level was not sustained, was it?

A. No.

Q. Is it the case that he started to miss days at work with pain, complaining of pain in his back?

A. Yes.

Q. And from mid 2010, did you reduce his hours of work to, again, five days a week, eight hours a day?

A. Yes.

Q. Were you satisfied that that was the extent of the work that he could actually manage?

A. It was. He does have a lot of sick days.

Q. So, he misses work?

A. I can't continuously pay him if he continuously has sick days, because I do not have the money to.

Q. In any event, his earnings fluctuated with his increased work, from time to time. But in the last two or so years, his earnings have been very, very modest indeed, have they not, compared to industry standards?

A. Definitely."

74 Robert Sharp also described what Mr Sharp does these days at work:

"Q. What does he do in the course of a normal day's work theses days for you?

A. He will cut materials that I need cut. He will pass me things. He basically stays on the ground. I will be up on the roof or anywhere else, and then I will come back down and get materials off him, and go back up to work. He is nowhere near what I am.

Q. I understand that. During the course of an 8 hour day, as an employee of you, I want to know what he does?

A. He cuts materials.

Q. Is that using a circular saw?

A. Yes, a compound saw. It depends on the job.

Q. Sure. But last week, was he working for you?

A. Yes.

Q. What do you remember he did last week?

A. We did a bit of framing; cut timber and he would pass it to me; he nailed timbers together; he carries timber to me. That is about it. I don't know."

75 Robert Sharp agreed with Mr Curran's description of what Mr Sharp did as "light labouring and apprentice type work."

76 The evidence before me, including evidence concerning the extent of his disabilities given by Mr Sharp in cross-examination, speaks with one voice. Mr Sharp appears clearly to have current and likely permanent restrictions upon his ability to work that limit him to his current employment activities or something similar. He has lost any reasonable prospect of returning to work as a full time carpenter without the associated risk of immediate and long-term problems and discomfort. He has also become subjected to the harsh realities of the open labour market in his injured state to which he was not exposed in the somewhat benign and protected environment of his brother's company. Robert Sharp's indication, that in effect he could not afford to retain his brother if he was not capable of carrying his weight, has ramifications for Mr Sharp's employment future.

77 In my opinion, Mr Sharp has lost the difference between what he has earned in the past and the amount that he earned as a full-time employee, which I accept to have been $689 net per week. It is clear that he was unable to maintain work at a rate sufficient to generate that wage, so that by the time of his second full-time year of employment with Coastwise following his accident, he was reduced to a little over $500 per week. With the modest exception of the year ending 30 June 2012, this deterioration continued up to the present time. Accordingly, Mr Sharp's past loss of wages is calculated as the difference between $689 net per week and the amounts in other years that he was able to earn.

78 Calculations referable to my findings and conclusions concerning past loss of earnings are as follows:

22.09.2008 - 30.6.2009 $689.16 - $380.20 = $308.96 x 40 weeks: $12,358.40

1.7.2009 - 30.6.2010 $689.16: NIL

1.7.2010 - 30.6.2011 $689.16: NIL

1.7.2011 - 30.6.2012 $689.16 - $550.06 = $139.10 x 52 weeks: $7,233.20

1.7.2012 - 30.6.2013 $689.16 -$432.76 = $256.40 x 52 weeks: $13,332.80

1.7.2013 - 30.6.2014 $689.16 -$421.50 = $267.66 x 52 weeks: $13,918.32

1.7.2014 - 22.7.2014 $689.16 -$421.50 = $267.66 x 3 weeks: $802.98

79 Mr Sharp's past loss of earnings is therefore $47,645.70 which, when reduced by 15 percent for contributory negligence, amounts to $40,499.

80 So far as Mr Sharp's future wage loss is concerned, I estimate that he could, and would but for his injuries and disabilities, have earned an average net weekly wage as a full-time carpenter of $1,425. His present earning capacity is approximately equal to his current net earnings of almost $425 net per week. His weekly net loss of wages is therefore $1,000. That loss would have continued until the age of 67 years.

81 Mr Sharp was born in April 1984. He is currently 30 years of age. A weekly loss of $1,000 for 37 years at a discount rate of 5 percent produces 893.6 x $1,000 or $893,600. Taking account of vicissitudes at 15 percent, Mr Sharp's loss of future income amounts to $807,205.70. That sum reduced by 15 percent for contributory negligence is $686,125.

Damages against Staiger

82 I have indicated that Mr Sharp's claim against Staiger should be dismissed. In accordance with the usual practice and high authority, I will set out below the damages to which Mr Sharp would have become entitled had he succeeded. I have not proceeded to calculate the sum to which Mr Sharp would have become entitled as a judgment after the application of calculations pursuant to s 151Z(2) of the Workers Compensation Act 1987. That calculation can be done if or when the need to do so arises.

83 The damages to which Mr Sharp would have become entitled against Staiger include the sums that I have awarded for past and future wage loss against Coastwise.

84 It was agreed between the parties that Mr Sharp's out of pocket expenses came to a final sum of $22,200.

85 Lost employer superannuation contributions on past loss of wages at 11 percent produce a figure of $4,455. Lost employer superannuation contributions on future loss of wages at 11 percent produce a figure of $79,929.

86 In my opinion, Mr Sharp's injuries and disabilities qualify him for damages for non-economic loss assessed at 35 percent of a most extreme case.

87 I am satisfied that Mr Sharp would have been entitled to damages for past gratuitous attendant care services for the period between his discharge from hospital until his return to full-time work on 1 July 2009. His spine was fractured at two levels and he suffered other injuries. The precise nature and extent of his condition was one in respect of which it was appropriate from a medical and therapeutic standpoint to take an expectant approach. I consider that Mr Sharp would have required at least one hour per day for the whole of the period up to and including 30 June 2009. The hourly rate is to be calculated as one fortieth of the applicable average weekly earnings for those providing attendant care services. The number of hours and the amount per hour can be calculated in the event that it becomes necessary to do so.

88 I am not, however, satisfied that Mr Sharp has established any basis for a claim for such ongoing care. He gave evidence, supported by his sister-in-law, that there were various household and domestic tasks of which he was and remains incapable. There included cleaning the bath, vacuuming, making the bed, carrying baskets of dirty clothes to the laundry, doing the washing and hanging out the wet clothes, as well as wheeling the rubbish bin to the kerb and back. Some professed inability to cook or prepare meals was also suggested.

89 My first concern is that all of these tasks could not occupy six hours per week for a single man on any reasonable assessment of what the tasks involved when realistically considered. Secondly, but in my opinion more significantly and in this case fundamentally, I am not satisfied that Mr Sharp is unable to perform the tasks for which he claims assistance. I hasten to add that I completely accept the evidence given by Katrina Sharp about the things that she does for her brother-in-law. I am not prepared to accept that Mr Sharp is unable to perform the tasks himself or that Ms Sharp's benevolence is a function of a genuine need for the services and assistance that she provides. His residual earning capacity, effectively represented by the work he currently performs for Coastwise, is itself wholly indicative of a physical ability to perform all of the nominated household chores.

90 Mr Sharp has also made a claim for future medical expenses. However, there is no evidence before me upon the basis of which to calculate or assess any such claim. He is not a candidate for further surgery. He eschews analgesic pain relief. He no longer requires a back brace of other apparel, nor is he a candidate for postural or ambulatory aids. I rejected some unsubstantiated evidence that Mr Sharp sought to rely upon concerning suggestions that Mr Sharp may have had a need for periodic visits to his general practitioner. No admissible evidence of any other likely or anticipated medical treatment, or its cost, was tendered.

91 If any issue concerning the calculation of or entitlement to interest arises, I would expect that the parties concerned would agree upon the matter or refer the question to me for consideration, in the event that it were necessary to do so.

Conclusions and orders

92 I propose the following orders:

(1) Judgment for the plaintiff against the second defendant for $726,624.

(2) Judgment for the third defendant.

(3) Dismiss the cross-claims between the second defendant and the third defendant.

(4) Direct the parties to provide submissions on the question of costs, including the questions of whether or not the second defendant should pay the plaintiff's costs, whether or not the plaintiff should pay the third defendant's costs, and whether or not the second defendant should indemnify the plaintiff with respect to any costs that the plaintiff may be ordered to pay the third defendant.

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Decision last updated: 12 August 2014