Ianello v BAE Automation and Electrical Services Pty Ltd & Ors [2008] VSC 544 (4 December 2008)

Last Updated: 5 December 2008


IN THE SUPREME COURT OF VICTORIA		Not Restricted

AT WARRNAMBOOL

COMMON LAW DIVISION

No. 1362 of 2007

SANTO IANNELLO	Plaintiff

v

BAE AUTOMATION AND ELECTRICAL SERVICES PTY LTD	Defendants


VWA	Plaintiff

v

COLAC OTWAY SHIRE COUNCIL & ORS	Defendants

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JUDGE:	FORREST J
WHERE HELD:	Warrnambool and Melbourne
DATE OF HEARING:	23, 24, 25, 26 September and 10, 13, 14, 15, 16 & 20 October 2008
DATE OF JUDGMENT:	4 December 2008
CASE MAY BE CITED AS:	Iannello v BAE Automation and Electrical Services Pty Ltd & Ors
MEDIUM NEUTRAL CITATION:	[2008] VSC 544

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TORT – Negligence – Workplace injury involving fall through skylight on roof – Contribution – Apportionment of liability between employer, occupier and architect – Relevance of experience of employee - Contributory negligence

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J.B. Richards SC with Mr J.J. Fitzpatrick	Stringer Clark

For BAE	Mr P.A. Scanlon QC with Mr W.R. Middleton	Lander & Rogers

For Colac Otway Shire	Mr A. Ramsey	Hunt & Hunt

For Tiena Pty Ltd	Mr N. Rattray	Ebsworth & Ebsworth

For Victorian Workcover Authority	Ms K. Galpin	Hall & Wilcox

HIS HONOUR:

Introduction

1 The plaintiff, Mr Santo Iannello, suffered a serious injury to his head and spine when, on 4 February 2005, he fell through an acrylic skylight on the roof of the Colac Otway Performing Arts and Cultural Centre (“COPACC”). He brings this proceeding against his employer, BAE Automation and Electrical Services Pty Ltd, the owner and occupier of COPACC, the Colac Otway Shire Council (“the Council”) and Bradbury, Dicker Whitnall (now known as Tiena Pty Ltd), the architect responsible for the design of major renovations and refurbishment to COPACC carried out between 1999 and 2000.

2 In addition to Mr Iannello’s proceeding, the Victorian WorkCover Authority (“VWA”) brings an action against the Council and Tiena pursuant to s 138 of the Accident Compensation Act 1985 (Vic) (“the Act”). At the commencement of the hearing I ordered that this proceeding be heard at the same time as the Plaintiff’s claim.

3 Notices of contribution were exchanged by the three defendants. The VWA proceeding requires a determination of proportionate liability. The issues that arose for my determination at the commencement of the trial were:

(a) Whether there was any negligence on the part of BAE which was a cause of Mr Iannello’s injuries and, if so, in what proportion should BAE be held responsible in Mr Iannello’s claim.

(b) Whether there was any negligence on the part of the Council which was a cause of Mr Iannello’s injuries, and, if so, what proportion of responsibility it should bear in relation to his claim. In addition if found liable to Mr Iannello, then it may follow that it is liable to VWA at the same proportionate liability.

(c) Whether there was any negligence on the part of Tiena and, if so, what proportion of responsibility it should bear in relation to Mr Iannello’s claim. In addition if found liable to Mr Iannello, then it may follow that it is liable to VWA at the same proportionate liability.

(d) Whether there was any contributory negligence on the part of Mr Iannello.

(e) Whether any other person not a party to the VWA proceeding should be held responsible for Mr Iannello’s injury. If so, such a finding would reduce the proportionate liability of the council and the architect to VWA.

4 At the conclusion of the trial and in the course of final addresses, counsel for BAE, the Council and the architect each admitted liability to Mr Iannello, but alleged contributory negligence and disputed the apportionment of contribution amongst themselves. The assessment of damages also remained an issue.

Background to the claim

5 In 1996 the Council, with funds to be provided from Arts Victoria, initiated steps to convert the civic hall at Colac into a performing arts centre. It engaged the architect who, after feasibility studies, prepared plans and specifications[1] for the construction of the COPACC building. That building subsequently underwent major renovations to convert it into a performing arts centre during 1999 and 2000.

6 As part of the project, two large packaged air conditioners were installed on the roof of the COPACC building. A number of smaller split cycle systems were already located on the civic hall roof.

7 At the time of the accident Mr Iannello was a highly experienced maintenance engineer employed by BAE, a company owned and operated by his son Ben Iannello, which conducted business in Colac and surrounds. BAE conducted the business of installing and maintaining air conditioning and heating units. After Mr Iannello moved to a small block at Barongarook close to Colac in late 2002 he commenced employment in early 2003 with BAE on a part-time basis.

8 In August 2002, BAE entered into a contract with the Council to maintain the air conditioning units located on the roof of COPACC.[2]

9 The roof is split level. It is of cliplock construction.[3] The western part of the building and the roof (“the lower roof”) abuts a car park adjacent to Corangamite Street. Approximately ten metres from the western edge of the building, there is a further roof (“the raised roof”) which is raised about 700 to 800 mms above the lower roof. The raised roof, which then runs to the eastern boundary of the building, is also constructed with cliplock. In February 2004, twelve skylights were located on the lower roof. Several split system air conditioning units were located on the lower roof.[4] The newer and larger packaged air conditioner units were situated on the raised roof – one in particular located a short distance east of the western edge of this part of the roof.[5]

10 To gain access to the roof, it was necessary to erect a ladder on the western wall of the building and then climb onto the lower roof and then, if access was required to the raised roof, to walk to it and then climb onto it.

11 In February 2003, Mr Robert Harrowfield, the Building Supervisor Officer at the Council, obtained a quotation from Safe Access Systems for works to be carried out in respect of “Roof access safety – Council Buildings and Arena Roofs”. No action was taken by the Council in response to the quote.[6]

12 Pursuant to BAE’s contract with the Council, Mr Iannello had, on many occasions, ascended a ladder and serviced equipment on the COPACC roof. On 4 February 2004, he, in company with his son, Ben Iannello, attended at COPACC. They both fixed the ladder in position to gain access to the lower western roof. Mr Iannello ascended the ladder, traversed the lower roof and then climbed onto the raised roof. He carried out his servicing tasks to the packaged air conditioners and was in the process of returning when he fell through a skylight located on the lower roof close to where it met the raised roof. I shall say more about the immediate circumstances surrounding the fall later.

13 Mr Iannello fell about three metres onto the wooden floor of a storeroom. It was fortuitous that he did not suffer major life-threatening injuries, as the floor area was clear. Notwithstanding this, he suffered serious injuries to his back and head. He was taken by ambulance to the Colac Hospital and then transferred by air ambulance to the Alfred Hospital, where he spent 11 days. Subsequently, after a couple of weeks recuperating at his daughter’s house, he returned home. He went back to work on a part-time light duties basis with BAE from the end of 2006 until May 2008 when he retired. He has not worked since and is now in receipt of the old age pension. He continues to live at his home at Barongarook.

14 Representatives of WorkSafe Victoria attended the scene of the accident and issued an improvement notice to the Council[7] which, virtually immediately, installed mesh covers over all the skylights in the lower roof at a cost of $2937.[8]

15 Following a Council meeting in December 2004, large scale improvements were made to the lower roof. The renovations included the installation of walkways to provide safe access to the air conditioning units.[9]

16 On 27 May 2005, the Council pleaded guilty to a breach of s 21(2)(a) of the Occupational Health and Safety Act (Vic) 1985 in that it failed to provide and maintain plant and systems of work that were, so far as was practicable, safe and without risks to health.[10]

The evidence at trial

17 Mr Iannello and his wife, Vivienne, gave evidence. In addition, an expert witness, an engineer and ergonomist, Mr Mark Dohrmann, was called on his behalf.[11] A number of medical reports relating to Mr Iannello’s injuries were tendered by consent.[12]

18 BAE called one witness, Ben Iannello.

19 The Council called an expert witness, an architect, Mr John Permewan,[13] and two Council officers, Mr Harrowfield and Ms Lorraine Ladhams.

20 The architect called two witnesses; Mr Noel Bradbury, an architect, the responsible director of Bradbury Dicker Whitnall, and an expert witness, an architect, Mr Peter Quigley.[14]

Background of Mr Iannello

21 Mr Iannello is now 65 years of age, having been born on 12 May 1943 in Sicily. At the age of 13, his family immigrated to Australia and he left school when he was 15 years old. He worked initially with the Victorian Railways, working on steam engines, until he became a steam engine driver. He obtained qualifications from the RMIT. He worked for a time in rural Victoria and, apart from a short time working in the retail business, remained in the employment of the Railways until 1971.

22 Between 1971 and 2001, Mr Iannello worked, effectively, as a maintenance engineer specialising in heating and air conditioning at a number of locations in and around Melbourne. In particular, he worked for H.D. Sleigh for ten years and for RESI Statewide for 13 years. Between 1999 to 2001, he worked at the Monash University and then transferred to the College of Pharmacy in Parkville, as the hours were more congenial. At the College of Pharmacy, he supervised the contracts for services to the buildings and performed some of the maintenance work himself. He earned around $44,000 gross.[15]

23 Mr Iannello married in 1968 and has three children. As I have said, one of his children, Ben Iannello, had commenced the business of BAE in Colac.

24 Mr Iannello resigned from his job at the College of Pharmacy and moved with his wife to Barongarook in December of 2002. He commenced to develop the block pursuing his love of gardening and viticulture. He established vines and at the time of the accident was in the process of turning the block into a showpiece. He then commenced working for BAE in February 2003.[16] He engaged in securing contracts with local organisations such as the local hospital, the Department of Sustainability and Environment, a number of medical clinics and the Council; he worked approximately 17 hours per week in the first 12 months.[17]

25 Mr Iannello said that the business was expanding and that he intended to assist his son in growing it. (Ben Iannello confirmed this evidence, which was not contradicted). He was responsible for securing contracts and for carrying out the maintenance work. He told me that he intended to continue past the age of 65 and work until the age of 70, as that was the time at which his wife would become eligible for the age pension.[18]

26 Mr Iannello was fit and healthy prior to his accident. I accept his wife’s evidence as to his work ethic. Indeed, my observation was that, notwithstanding his age and his injuries, he is still remarkably fit and, absent the injuries, the prospect of him working to age 70 is not in the least surprising.

Mr Iannello’s employment with BAE

27 As I have said, Mr Iannello commenced work with BAE in February 2003. It was intended that he would have the responsibility for growing the maintenance and service side of the business. He agreed with Mr Scanlon QC, who appeared with Mr Middleton for BAE, that he had a far greater knowledge of working on air conditioning ducts and carrying out maintenance than not only his son, but anyone else at BAE.[19] In particular, he had far greater experience in relation to working on roofs and servicing equipment located at that level.[20] To a considerable extent, this concession was watered down by Ben Iannello, who also said that he had vast experience in working on heights and on roofs.[21]

28 He accepted that in carrying out his work, he did not need induction, assistance or supervision as, given his experience, he was familiar with all aspects of air conditioning/heating maintenance service.[22]

29 Mr Iannello had been on the COPACC roof “many times” prior to his accident, usually carrying out the maintenance of the larger packaged units.[23] In fact, Mr Iannello and his son, Ben, negotiated the maintenance contracts with the Council.

The building and its renovations

30 The relevant part of the existing Council building, a civic hall with attached supper rooms had been built in approximately 1962.[24] The lower roof was located, in earlier days, over a bar and store room which were annexes to the hall. The raised roof was located above the hall.

31 The architect, Bradbury Dicker Whitnall, was engaged by the Council in October 1996 to prepare plans and undertake an economic assessment for the construction of the Performing Arts and Cultural Centre.[25] The existing Council building was to be substantially renovated to provide for a large complex, including a cinema and performing arts centre. In August 1998, the council extended the architects’ commission to include other design and supervision services. Mr Bradbury was the responsible director of the architect and he prepared drawings and specifications in 1999 and 2000 for the new work, which were utilised in the construction.[26]

32 It had originally been envisaged that the architect would supervise construction. However, on 10 December 1998, Warren and Rowe (Aust) Pty Ltd was appointed as project manager for the construction of the new centre. AW Nicholson Pty Ltd was engaged as the builder. Work on the project commenced in early 1999 and concluded in late 2000.

33 The civic hall and adjacent rooms, including the store room, were to become part of the COPACC building.[27] The works did not involve any alterations to the lower roof in which the skylight was located. However, the work did involve the use by the builders of skylights within the lower roof as a means to gain access to the building works. The skylights, including the subject skylight, were apparently removed and ladders then placed in the rooms below so as to give access to the roof and then permit the various tradesmen to traverse the roof to the building site.[28]

34 The plans and specifications[29] prepared by the architect, Mr Bradbury, provided for the installation of the two packaged air conditioners on the raised roof and the building upon which the lower roof was constructed formed part of the overall plan for the building of COPACC. The plans also provided for the installation of a new skylight in the raised roof using an Atlite roof hatch with a clear polycarbonate dome. [30] In accordance with the plans, the two large packaged air conditioners were installed on the raised roof, relatively close to where the two roofs met. However, there was no provision, at all, in the plans and specifications in respect of safe access to the packaged air conditioners installed on the raised roof.

Council management of COPACC

35 The building became operational in late 2000. In mid to late 2002, Mr Harrowfield was appointed by the council as building maintenance supervisor.[31] He had previously been engaged as a hall keeper and had little or no experience in relation to working on heights or as to safety matters.[32] I will say a little more about his evidence later.

36 On 5 August 2002, BAE entered into a contract with the Council, via Mr Harrowfield, to service and maintain the air conditioning systems located on the COPACC roof.[33] The contract was renewed on 25 August 2003 and was in force at the time of Mr Iannello’s fall.[34]

37 Ms Ladhams was the risk manager of the Council and, in February 2003, spoke to Mr Harrowfield about proposed regulations relating to working at heights.[35] Mr Harrowfield obtained a quotation from Safe Access Systems in respect of works to be carried out on the roof to comply with the proposed regulations. He inspected the roof in the company of the contractor’s employee.[36] A quote[37] was prepared and a business case submission made to the Council in respect of the works. However, the Council rejected the business case[38] and no further action was taken.

The roof and access to the packaged air conditioners

38 I have already described in general terms the structure of both the lower and raised roofs. Exhibit T1, a photograph, shows the roof in 1999 prior to the renovations. The state of the roof at the time of the accident is clearly depicted in photographs tendered as Exhibit P1, and particularly photographs 126 to 130, as well as Exhibit P2. The uncontested evidence was that the Council owned and was responsible for the COPACC roof.[39]

39 On 26 September of this year, a view was held so as to enable a better appreciation of the roof and skylight in particular.

40 At the time of the accident, none of the skylights located within the lower roof were protected by mesh or covering. There were no walkways, either temporary or permanent. There were no handrails. The roof was constructed of cliplock, which means, as the photos show, that there are raised ribs (with channels) which pose a potential tripping hazard to those working on the roof. There was no ladder or steps providing safe access from the lower roof to the raised roof. There were no anchor points for harnesses. There were no fixing points for ladders to be secured from the ground to the lower roof.

The skylight

41 The skylight was made of steel and was manufactured by Atlite, a well known manufacturer of skylights. It was raised above the roof and its dimensions were approximately 700mm x 700mm.[40] Within the skylight frame was a plastic dome made of acrylic. It was located about three metres above the floor of the storeroom.[41]

42 The skylight was probably installed over 20 years ago at the time of the installation of the roof over the rooms adjacent to the civic hall.

The Accident

43 On 4 February, Mr Iannello and his son, Ben, went to COPACC with the intention of carrying out servicing of the packaged air conditioning units.

44 As there was no anchor point, they strapped the ladder onto the guttering clips and then Mr Iannello ascended the ladder and crossed the lower western roof to gain access to the packaged air conditioners. Ben left once Mr Iannello had gained access to the roof. Mr Iannello carried out the servicing on the packaged unit[42] and then had to descend from the raised roof to the lower roof. He was carrying his toolbox. Photographs taken on the day show the toolbox still in situ on the raised section close to its edge with the lower roof.[43] He believes that it would have been situated to his right prior to moving onto the lower roof. I infer that he sat on the raised section intending to lower himself onto the lower section. He then intended to walk across the lower roof in a westerly direction towards the ladder.[44] He swore that he had no memory of how he came to fall. His last recollection is as follows:

“That I turned – I sat there, turned to pick up my toolbox and that’s the last I remember and I remember falling through, trying to grab onto something during the fall.”[45]

45 Mr Harrowfield went up a ladder in the store room and looked through the damaged skylight. He saw that the toolbox was still present on the raised roof with a notepad or clipboard and a set of reading glasses located on the roof.[46]

46 Mr Iannello was aware that there were skylights on the roof and he knew that it was foolish to step on them. To use his words “foolish to step on it, suicide”.[47]

47 Although Mr Iannello has no recollection of the accident, there is evidence from Mr Harrowfield as to a discussion he had with Mr Iannello some months after the accident when he met him in Colac:

“He said he was sitting on the ledge above the skylight, his feet were probably about three or four inches from the lower level of the roof. ... He said he was sitting on the ledge – he said he was sitting on the ledge doing his paperwork, he jumped off the ledge and fell through the skylight. And he said then that he had his reading glasses on, which distorted the distances between the roofs and he – he then basically said there – there was no-one else to blame ‘it was my own fault’.”[48]

48 Mr Iannello had no recollection of the conversation with Mr Harrowfield. I accept that the conversation took place. With minor exceptions (which I will mention in the course of these reasons), I took the view that both Mr Iannello and Mr Harrowfield were honest and doing their best to recall events which occurred some time ago. On the issue of the conversation, I accept Mr Harrowfield’s version. Not only did his evidence survive attacks upon it in cross-examination, but the account also seems to me to sit comfortably with the facts. The point where the two roofs met provided a form of ledge, and a conscientious worker such as Mr Iannello was likely to complete his paperwork before he set off. The position of the toolbox as shown in the photographs[49] is also consistent with him sitting on the ledge immediately prior to his accident.

49 I conclude that Mr Iannello did, in fact, sit on the raised section with his feet, in effect, dangling. I think it probable that he pushed himself off and either stumbled or tripped on a raised rib of the roof, causing him to fall through the skylight. Indeed, any other scenario would, as Mr Iannello observed, be tantamount to an attempted suicide or, for that matter, suicide.

50 For the sake of completeness, I should say that I attach no significance to Mr Iannello’s remarks, which I accept that he made, that it was “my own fault”. Indeed, it was not suggested by counsel for the defendants that I should place any importance on these remarks if I accepted Mr Harrowfield’s evidence as to the conversation.

Relevant codes and regulations

51 It was not in issue that the building regulations, and thereby, the Building Code of Australia (“BCA”) applied to the renovations carried out in 1999 and 2000. The BCA relevantly describes a performance objective under Part 2.1 “The objective is (d) safeguard people from injury which may be caused by failure of, or impact with glazing”. There is nothing specific in the Code which deals with skylights, nor does it pick up the Australian Standard which has a standard directed to skylights, AS4285.[50]

52 AS4285 specifies that “domes shall be made of acrylic, polycarbonate, glass or any other material which satisfies the requirement specified in this Standard”. Under the Standard, a form dome is meant to be affixed to a skylight with the following attachment: “Warning: Keep off. Risk of fall – skylight glazing may not support body weight”. Mr Quigley, a highly experienced architect, had never seen such a sign on a skylight. In Appendix D the following is said:

“Form domes should not be automatically considered to be of sufficient strength to support the body weight of a person. Much depends on size, shape and preferred materials. If the skylight is to be installed on a roof area that could be considered trafficable, care needs to be taken in the basic design of the unit”.

There was no evidence that, apart from the warning notice, the skylight did not comply with this standard.

53 In the course of the evidence of the two consultant architects, Mr Permewan and Mr Quigley, there was reference to another Standard, AS2424, which was superseded by AS1562.3. It relates to “design and installation of sheet roof and wall cladding – plastic”. It requires the installation of safety mesh beneath translucent material. However, I am of the view that it is not applicable to skylights which are covered by a specific Standard. This was the opinion of Mr Quigley, which I share. I reject Mr Permewan’s suggestion that this Standard applied to skylights. [51] The words “roof and wall cladding” are clear.

54 The other relevant regulatory provision (if it can be called that) is the Victorian WorkCover Authority Code of Practice for Safe Work on Roofs (“the Code of Practice”) which, under clause 1.4, requires the contractor to -

“take steps to ensure the workplace and access to the workplace will be safe prior to commencement of the work, including assessment of wind and weather and organisation of ... access ... inspection for safety mesh ... identification and highlighting of fragile roofs ... identification highlighting of fragile panels in solid sheet roofs”

55 In relation to fragile roofs, the following is contained at clause 2.3(c):

“Where it is necessary for maintenance or repairs to be carried out on a roof containing fragile materials, the employer of persons required to carry out the work should:

Inspect the under side of the roof to determine the extent of the fragile material, existence of any safety mesh, and the structural soundness of the roof and any safety mesh.”

56 In relation to design planning, clauses 1.1(a) and (b) state:

“1.1(a) Persons engaged in the architectural and engineering design of roofs and roof framing are required to consider the effect on safety of the work practices necessary to carry out the installation, fixing and maintenance of the roof covering of their particular designs.
1.1(b) Matters which should be considered would include:-
(i) The provision of safety mesh of a type described in clause 2.1.1 of this code.
(ii) Provision of anchorage points for static lines, inertia reel lines, and/or safety nets as the case may be.
(iii) Roof structure accessible for the installation of safety nets.
(iv) Incorporation of guard railing or guard rail attachments in the perimeter structure, especially prior to erection.
(v) The ground or floor below the roof area, including the perimeter, prepared to provide a firm and level support for mobile equipment prior to commencement of roofing operations.
(vi) a permanent provision to facilitate access to the roof for maintenance and repair.
(vii) Design to reduce work at heights as much as is practicable, for example, the use of sections pre-assembled on the ground and the installation of guard railing to perimeter members prior to hoisting.”

57 In relation to access, paragraph 2.2(a) and (b) read as follows:

“2.2(a) The person who has the management or control of a workplace where persons are employed to work on roofs has a responsibility to ensure that the access from the ground to the actual work area is safe and without risk to health.
2.2(b) Assessment of access requirements should take into account tools and equipment the roof worker may be required to carry to and from the work site. Mechanical lifting aids should be provided where appropriate.”

58 I am satisfied that there was no breach of the provisions of the BCA relevant to the happening of the accident. Nor was there any relevant non-compliance with the Australian Standards. I do not accept Mr Permewan’s opinion that the plastic sheeting of the skylight was, at the time of the accident, suspect. This was based on the inspection made four years after the event and is contrary to the evidence of Mr Bradbury. The failure to place a warning label on the dome is, in my view, irrelevant and the structure of the skylight itself complied with the Australian Standards.

59 The Code of Practice is not a regulation, but it does provide guidance as to an appropriate standard to be observed by the various defendants in or around 1995 and thereafter. In particular, paragraphs 1.1(a) and (b) are relevant to the claim against the architect which, whilst primarily directed towards the perimeter of buildings, alert those engaged in architectural and engineering design to consider the safety of those working on a roof. As discussed later, this is contrary to the opinion of Mr Bradbury, who regarded occupational health and safety matters at that time as outside his bailiwick.[52] I do not accept his evidence in that regard.

60 Paragraphs 2.2(a) and (b) are important and relevant to both BAE and the Council. It alerts both to the risks posed by employees being required to work at heights using a roof as a method of access to a work site.

Expert evidence as to the state of the roof

61 The expert evidence led in the case was directed towards two issues. The first was directed to the risks posed by the state of the lower roof and potential safety measures which could have been utilised. The second was that of the obligations of the architect and any potential breach of duty on the part of the architect, Mr Bradbury. I shall return to this issue when I deal with apportionment.

62 On the first issue, Mr Dohrmann, an engineer and ergonomist, gave evidence. He identified the risk posed by the unguarded skylights and suggested alternative methods to prevent an accident.

63 He nominated the following risks associated with the roof:

(a) The lack of a sole means of access from the lower roof to the raised roof.[53]

(b) The cliplock roof with its raised ribs constituted a tripping hazard.[54]

(d) The position of the skylight in the area where access to the air conditioners was required.[55]

64 He gave evidence that there were at least two ways to avert or minimise the risk:

(a) The skylight should have been guarded by mesh being placed either underneath it or above it.[56]

(b) Walkways, either permanent or temporary, should have been erected to provide a safe means of access across the roof to the point where the servicing was to be carried out. Ideally, such a walkway should have been permanent.[57]

I accept his evidence that these two measures were practicable. However, I do not accept his opinion that it was either practical or desirable for either the Council or BAE to put up a temporary walkway as he suggested. The idea of putting down temporary boards every time a service was to be carried out not only carries its own risks to safety but is patently impractical as the cross-examination by Mr Scanlon QC revealed.[58] The evidence of the use of trestle tables as a temporary walkway during the construction of the COPACC roof does not resolve the issue.

65 Much of the evidence extracted from Mr Dohrmann in cross-examination by the various parties was no more than an attempt to dress up a submission as expert opinion. I reject the proposition that it was practical for BAE, each time it attended the building, to ensure that its workers brought with them a wire basket made of sheet fencing which would be placed over each of the skylights near where a worker may traverse, notwithstanding my own comments during the course of the hearing that it may well be a sensible suggestion.[59] I also reject the proposition that BAE should have required its employees to wear safety harnesses whilst on the roof as Mr Dohrmann suggested. Not only does this strike me as being impractical as Mr Quigley observed, but the real purpose of such harnesses is to prevent falls from the building perimeter; this being the reason for anchor points to be set up at the edges or corners of a building.[60]

66 Mr Permewan, the consultant architect, primarily gave evidence concerning the role and responsibilities of an architect. However, he did express views about the condition of the roof as at the time of the accident. He also perceived that the state of the skylight represented a risk to those traversing the lower roof. He was of the view that another means to avoid or reduce the risk was to provide relatively short fixed ladders for access from the lower roof to the raised roof. This would not only mean that those using the roof would not try and jump down with the risk of tripping or stumbling, but also that there would be a delineated point at which access to the raised roof would be made.[61]

67 Mr Quigley, a practising architect, accepted that the roof was in effect used by servicemen as a floor,[62] with the attendant risk of serious injury if a fall occurred. He agreed that, given that the servicing of the air conditioning units required the crossing of the lower roof (and negotiating a path away from the skylights), it would have been helpful to provide walkways across the lower roof or to have sited the air conditioners on a platform on the roof and provided internal access from the ground level to the platform.[63] He said as follows:

“I mean the walkway provides a clearly defined access route, so people are more likely to walk on that.”[64]

68 Ultimately, there was a unanimity, it seemed to me, of opinion in relation to the adequacy of the roof. Accepting that it provided a regular means of access to the air conditioners located on the lower roof and the upper roof, the unprotected skylights combined with the design of the roof itself (i.e. the cliplock) posed a clear and identifiable risk to persons working on it. The various measures to reduce the risk posed by the skylight can be summarised as follows:

(a) The provision of fixed, permanent walkways which provided access to the raised roof and the large packaged air conditioners such as were introduced in 2004.[65]

(b) The provision of a small set of fixed steps as between the lower roof and the raised roof, which would have reduced the likelihood of someone jumping down and running the risk of losing their footing. These have now been installed.[66]

(c) The provision of safety mesh either above or below the skylight, which would have prevented a fall through the skylight. This was implemented immediately after the accident.[67]

Liability of the defendants to Mr Iannello

69 Each of the defendants admitted liability in the course of final addresses. Each sought contribution under Part IV of the Wrongs Act 1958 (Vic) from the other. It is now necessary to address their individual roles in determining apportionment between them.

70 Before I turn to their individual roles, it is necessary to say something about foreseeability of risk. The High Court has, in recent years, emphasised the necessity for a court, in determining a claim in negligence, to identify with some precision the risk which it is said should have been foreseen.[68] This then enables the inquiry as to foreseeability to proceed and assuming the particular risk is foreseeable to determine what steps, if any, should have been taken to alleviate or ameliorate the risk. The risk here was that a worker carrying out his duties on the roof may fall through a skylight with the prospect of very serious injury. Ben Iannello, Mr Harrowfield and Mr Bradbury did not perceive a risk created by the unguarded skylight to those working on the roof. Each of the defendants should have appreciated that the presence of the unguarded skylight located within the ribbed roof posed a risk of falling to persons likely to be working on the roof. Such a risk was not too far-fetched or remote. There was, in my view, a clear risk of injury which should have been anticipated by each of the defendants. To use the words of Mr Bradbury, the architect:

“I think it would be reasonable to say that anybody accessing a roof should, for all intents and purposes, assume that a skylight represents a hole in the roof. No skylight is safe to presume as safe to be stood or jumped on (sic)”.[69]

It is also significant that the risk of serious injury was high – a fall of over two metres may well be fatal or it may produce highly disabling injuries.

Principles in respect of apportionment pursuant to the Wrongs Act

71 The apportionment involves the application of the principles set out in Podrebersek v Australian Iron & Steel Pty Ltd.[70] Those principles in the context of apportionment between tortfeasors pursuant to Part IV of the Wrongs Act were recently restated by Chernov JA in the following terms:

“It requires a comparison both of culpability and the relative importance of the acts of the parties in causing the injury, requiring the whole of the relevant conduct of each of the negligent parties to be subject to comparative examination. The tasks involve matters of proportion, balance and relative emphasis and are, in this regard, similar to the exercise of a broad discretion.”[71]

72 In determining the respective liability of each of the parties, in essence one looks at the causal potency of the acts or omissions of the parties, as well as their degree of culpability.

Responsibility of BAE

73 BAE, as Mr Iannello’s employer, “possessed an independent personal obligation to take reasonable steps to ensure that a safe system of work was established and maintained for its employees”.[72] In Andar, the High Court noted the distinction between regular and repetitive work pursuant to a contractual arrangement as opposed to a casual activity which is engaged in during the course of a day’s activity. The Court said of the obligation of an employer where the tasks carried out by the employee were regular:

“[the employer] was obliged to take reasonable steps to ensure that the [work activity] was carried out in a safe manner. That obligation in turn required [the employer] to develop, and maintain, a methodology or system which would achieve that result”.[73]

74 The servicing of the air conditioners pursuant to a maintenance contract was clearly not a one-off operation. It fell squarely within the description of a permanent arrangement which mandated that the employer take reasonable steps to ensure that the maintenance work on the roof was carried out safely. That obligation required BAE to develop and maintain a system which would ensure that the servicing of the air conditioners was carried out by its employees in a safe fashion. Moreover, it could not, as part of its general common law duty of care, delegate that obligation to another party, such as the council or, for that matter, any independent contractor.[74]

75 In Czatyrko v Edith Cowan University,[75] the High Court said:

“If there is a real risk of an injury to an employee in the performance of a task in a workplace, the employer must take reasonable care to avoid the risk by devising a method of operation for the performance of the task that eliminates the risk, or by the provision of adequate safeguards. The employer must take into account the possibility of thoughtlessness or inadvertence or carelessness, particularly in a case of repetitive work.”

76 The evidence given by Mr Iannello and his son, Ben, demonstrated that no system of work was ever considered, devised or maintained by BAE in relation to working on the roof. It was simply a case of getting the work done without any consideration of safety whilst working on the roof. As Andar shows, the contention, which was developed powerfully in cross-examination of Mr Iannello and in final submissions, that Mr Iannello’s experience in some way discharges the obligation of an employer, can be dismissed. It matters not that an employee is experienced, or for that matter has played a part in devising the system of work, as was the case in Andar. The obligation rests squarely upon the employer to devise and implement a safe system of work.

77 As I have said, an employer cannot avoid that duty by relying solely upon the expertise of the employee. It may be that experience is a matter to take into account when formulating the system of work – but there must be consideration of the issue. Further, it may, in an appropriate case, be a relevant consideration to the issue of contributory negligence, but experience, simpliciter, of an employee cannot, and must not, relieve an employer of its obligation to give appropriate consideration to devising and implementing a safe system of work where there is, as there was in this case, a real risk of serious injury.

78 It is with these principles in mind that I turn to the role of the employer, BAE, in which I take into account the following factors.

79 The nature of the obligation that it bore to Mr Iannello which I have set out above.

80 BAE carried out no assessment of the risk or consideration of the risk posed to its employees.[76] Whilst an employer’s position in relation to the provision of a safe system of work may be constrained by the fact that it does not control the workplace, it cannot relieve the employer of its obligation to consider the risk, particularly where the work is carried out at that workplace regularly. It, undoubtedly, pursuant to its maintenance contract, had the right to attend the COPACC building and make recommendations about its safety.[77] The risk of injury posed by the skylight should have been identified and then steps could, and should, have been taken to ensure safe access was provided to the work site.

81 BAE failed to take any steps in relation to considering, devising or implementing a safe system of work. No instructions were given to Mr Iannello as to safe access and egress.[78] I accept the evidence of Ben Iannello that he did make representations to the Council in relation to the provision of fixing of ladders to the lower roof.[79] However I reject Mr Scanlon’s submission that the engagement of Safe Access Systems by the Council in 2003 was as a result of BAE’s letter to the Council.[80] Not only is the timing and the text of the letter unsupportive but Ms Ladham’s evidence, which I accept, is that the firm was engaged as a result of her becoming aware of the impending introduction of a new set of regulations.

82 I am not satisfied that BAE took any other steps to secure the safety of its employees, notwithstanding the risk posed by the skylight given its proximity to the packaged air conditioners. Mr Iannello’s evidence as to any discussions with Mr Harrowfield concerning the condition of the roof and the provision of walkways was equivocal, at best.[81] Similarly, Ben Iannello’s evidence as to any steps taken to provide a safe means of access to and from the air conditioners via the roof was not convincing, particularly given that he did not consider the skylight to be a risk.[82] Ben Iannello said that he had mentioned two or three times in discussions with Mr Harrowfield questions of anchor points and easy access with walkways, to which Mr Harrowfield had said it was out of his hands.[83] However, he also said that the discussions related to the other side of the building.[84] In fact, he had no concern about the safety of the walkways prior to his father’s accident. He regarded the dangerous part of the job as being “accessing the roof and getting off the roof”.[85] Whilst a letter forwarded by him referred to the provision of anchor points,[86] no mention was made of the provision of walkways. As he said on a number of occasions, the real issue was getting on and off the roof, rather than traversing it.[87] I accept the evidence of Mr Harrowfield that at no time did BAE, either through Mr Iannello or Ben, approach the Council in relation to the provision of walkways or any other aspect of safety on the roof.[88] This is consistent with what seems to have been BAE’s general approach to safety on the roof.

83 I do not however accept the Council’s submission that Mr Iannello should have been provided with a small set of steps by BAE to access the raised roof from the lower roof. What ought to have been done is that which was done after the accident by the Council – the installation of fixed steps. Nor do I accept that it was practicable to erect temporary walkways each time it carried out routine maintenance. I accept Mr Harrowfield’s evidence that such a suggestion was probably ludicrous.[89] Again the solution was in the Council’s hands – a fixed walkway.

84 Finally, it is true, as Mr Scanlon contended, that many aspects of the particulars of negligence alleged against BAE were either irrelevant or unnecessary for an employee of Mr Iannello’s expertise. However the obligation to devise and implement a safe system remained fundamental notwithstanding that the work was to be carried out at premises outside the employer’s control. This is a common experience in this day and age. As I have said it does not relieve an employer of its fundamental obligation. In this case a proper and considered inspection was necessary to identify hazards and potential risks particularly given the dangers of falling from heights. None was undertaken. If it had been the risks posed by the skylights would have been identified. The next step would have been to document those risks and bring them to the attention of the Council with suggestions as to how to either reduce or eliminate the risks. In the event that the Council was not prepared to take remedial measures then the ultimate solution was for BAE to refuse to send its employees onto the roof until the matter was sorted out.

85 BAE must bear a realistic proportion of the responsibility for Mr Iannello’s injuries. I assess that at 25%.

Responsibility of the Council

86 The Council’s obligations are spelt out under s 14B of the Wrongs Act. The relevant part of that section reads as follows:

“(3) An occupier of premises owes a duty to take such care as in all the circumstances of the case is reasonable to see that any person on the premises will not be injured or damaged by reason of the state of the premises or of things done or omitted to be done in relation to the state of the premises.
(4) Without restricting the generality of subsection (3), in determining whether the duty of care under subsection (3) has been discharged consideration shall be given to —
(a) the gravity and likelihood of the probable injury;
(b) the circumstances of the entry onto the premises;
(c) the nature of the premises;
(d) the knowledge which the occupier has or ought to have of the likelihood of persons or property being on the premises;
(e) the age of the person entering the premises;
(f) the ability of the person entering the premises to appreciate the danger;
(fa) whether the person entering the premises is intoxicated by alcohol or drugs voluntarily consumed and the level of intoxication;
(fb) whether the person entering the premises is engaged in an illegal activity;
(g) the burden on the occupier of eliminating the danger or protecting the person entering the premises from the danger as compared to the risk of the danger to the person.”

87 The following matters are relevant to the responsibility of the Council.

88 The Council both knew of and ought to have known of the risks posed by the skylight. Rather than locate the air conditioners on the ground, the Council chose to locate the two large packaged air conditioners on the roof. The Council also knew that contractors, be they plumbers or air conditioning servicemen, would be on the roof from time to time and the unprotected skylights must have been a potential risk. Moreover, it knew, when it entered into the contract with BAE, that its employees would be regularly attending the premises and servicing the air conditioners located on the raised section of the roof. The risk of serious injury to someone falling through a skylight was self-evident. It also should have known of the risks of tripping posed by the nature of the roof. In fact, Mr Harrowfield said that he knew it was a risky business getting down from the upper level to the lower level.[90] He also accepted that he knew Mr Iannello was being placed at risk when working on the roof and that the Council did nothing to alleviate that risk.[91]

89 The Council had control of both roofs. The one party which was capable of effecting alterations or improvements to ensure safety on the roof was the Council. The question of control is significant, as has been emphasised a number of times by both the High Court and the Court of Appeal.[92] It is that very ability to control the risk that may be determinative of a higher degree of responsibility on the part of a tortfeasor in an apportionment such as this. Whatever BAE or the architect said to the Council, it was the Council who determined whether the risk would remain or be removed. As Mr Harrowfield said, if he had perceived that there was a risk, then immediate action would have been taken by the Council to rectify the problem. He had the power to do works up to $5,000 without confirmation from the Council and that was what was done after the event.[93]

90 The Council had the ability to ascertain and determine the nature of the risk. Not only was it intimately involved in the planning stages of the redevelopment of the building, but there was a period of three years after the building opened for it to conduct an assessment of the risks posed by the roof. Just as the employer should have been aware of the provisions of the Code of Practice which, in a lengthy and informative document, demonstrated not only in general terms the risks posed but also the necessity to identify risks posed with working at heights. Clause 2.2(a) and (b) has direct application to the Council. It mandates an assessment of access requirements “to ensure that the access from the ground to the actual work area is safe from risk to health”.[94] No action was taken.

91 Mr Harrowfield may well have been an appropriate person to take on the job as building maintenance officer. However, the Council should have known that he had little or no experience in safety matters which had to be relevant to the carrying out of maintenance works by either Council employees or contractors. The Council did not carry out any induction or education when he first commenced. Not only was he not given any training, he was not sent on any occupational health and safety courses or provided with any documentation as to the role he would carry out as the building maintenance officer. He was not given any information, regulations or code which would assist in terms of determining matters of safety.[95] His superior officers did not give him any instructions or advice as to questions of access on the roof.[96] No inquiry was made as to his experience prior to taking on the job.[97] In 2003, he did not appreciate that the Council had a responsibility to keep the premises safe.[98] He had had no training in safety issues.[99] He did not know of the Code of Practice.[100] He agreed that it was inappropriate for the Council merely to rely upon feedback from contractors, rather than acquiring knowledge itself as to the risks posed to persons working on the roofs.[101]

92 The Council, as the controller of the workplace, had an obligation to make a risk assessment and to ensure that access to the work area was safe. Although there was evidence from Mr Harrowfield and Ms Ladhams that the Council engaged an organisation known as Safe Access Systems which provided a quote in February of 2003,[102] the instructions given by Mr Harrowfield were basic and its focus seems to have been on the perimeter access to the two roofs, not safety when traversing.[103] I accept the Council’s submission that the steps or ladders suggested by Safe Access Systems did not include the provision of steps from the lower roof to the raised roof in the area where the accident occurred. I also accept that its quotation did not include the provision of a fixed walkway on the lower roof to provide access to the air-conditioners. However where this all leads is not clear. I have no real idea as to what instructions were given to this organisation other than Mr Harrowfield called it in to obtain a quote. No-one from that organisation was called to give evidence; it appears to have provided a quote on the basis of “new regulations” which were to come into operation at some indeterminate point of time. Mr Harrowfield went onto the roof with the representative from this organisation. I have no confidence whatsoever that this organisation directed its attention to the regular carrying out of work on the roof by air conditioning maintenance contractors. I do not know whether it was appraised of the use of the roof as a means of access for air-conditioning servicemen. In any event, the Council having received the quote determined not to implement it. [104] To put it bluntly, the involvement of Safe Access System does not, in my view, relieve the Council of any overall responsibility it had for the safety of persons using its roof to access its air-conditioners.

93 What should have been done by the Council was to conduct a proper risk assessment of the two roofs. This is not a hindsight observation as the roof was, effectively, prescribed by the Council to be used by maintenance personnel as a floor upon which air conditioners had been positioned. As was pointed out during cross-examination, it may well have been that an air conditioning maintenance contractor was called out during the evening, particularly given that the air conditioning serviced the cinema. Notwithstanding these considerations, apart from engaging Safe Access Systems, the Council took no steps to audit the risks posed by the roof.[105] There were several potential risks – the cliplock roof was a tripping hazard and the need to jump down from one level to another was also a relevant risk. The risk posed by the skylight was self-evident.

94 The Council asserted that given that the COPACC building had been completed with the input of experts such as Mr Bradbury it was entitled to assume that it was safe from an occupational health and safety perspective. This should be rejected. Neither of the Council’s officers, including the risk manager, Ms Ladhams, made any inquiry of the architect or project manager as to OH&S considerations arising out of the building. The Council officers knew of the condition of the roof, and more importantly, knew that air-conditioners located on the roof required servicing. Blithe reliance upon the fact that it was a new building was not good enough.

95 It follows that I do not accept the allied submission that the Council’s responsibility is reduced in any significant way by its reliance upon others, such as the architect, the project manager, or the inspection by Safe Access Systems which I have commented upon. The Council bore ultimate responsibility for the state of the roof. It had its own risk manager, Mrs Ladhams, who specialised in OH&S matters. Working at heights is notoriously dangerous, and the proposition that the Council in some way can significantly abrogate its responsibility to those working on a roof controlled by it by reason of the failure of others to advise it is not persuasive. Indeed, the Council’s approach to recommendations as to safety concerning the roof could be described as languid at best. Nothing was done about the Safe Access Systems quote. Ben Iannello’s request in relation to fixing points for ladders was ignored. Although Mr Harrowfield said it was ignored because a roof access system was to be installed, he had no idea when that system would have been installed, if ever.[106] Ultimately, the Council was persuaded to carry out steps to secure safety on the roof only by reason of, I infer, Mr Iannello’s near fatal accident.[107]

96 Finally, it is clear that the Council had the means of providing a safe work area for maintenance contractors on the roof. It immediately installed safety mesh over the skylights[108] pursuant to the VWA improvement notice and subsequently installed the walkways in June 2004[109] which provide safe access to the working area in conformity with the Code of Practice. It also provided a short fixed ladder to give access from the raised roof to the lower roof, obviating the need to jump down.[110] I do not accept Mr Harrowfield’s evidence that the installation of the walkways was not related to the accident.[111] Indeed, it would seem extraordinary if it did not have a relationship, as the recommendation was made in December 2004 by Council and prior to the hearing of the VWA prosecution of the Council to which it pleaded guilty.

97 In summary, I take the view that the major share of liability lies with the Council, given its knowledge of the state of the roof, its knowledge of the presence of the contractors on the roof pursuant to a contract with the Council and its control over the work area. I assess its proportionate share at 65%.

Responsibility of the architect

98 It is not necessary, given the admission of liability, to discuss the scope of the architect’s duty. I think that it is tolerably clear that the architect should have considered the risks posed to workers accessing the roof to service the two air conditioners which had been installed pursuant to the plans supplied by it.

99 Mr Bradbury prepared the plans and specifications over several years. He had inspected the skylights in 1998 and took the view that they were quite serviceable at that time.[112] He thought that they were in quite good condition. Pausing there, I accept his evidence in preference to the retrospective assessment made by Mr Permewan, the consultant architect called on behalf of the Council, who assumed that the skylight must have been in poor condition, based upon his visual inspection of other skylights in 2008.

100 The real issue, in relation to Mr Bradbury’s role, is his failure to turn his mind to the risks posed by the positioning of the two packaged air conditioners on the raised roof. Whilst it is clear that no work in terms of renovations was to be carried out on the lower roof, it is equally clear that it is within the scope of works as indicated by the plans and specifications.[113] Mr Bradbury said in effect that the architect had no responsibility for any occupational health and safety considerations in its dealings with the Council, his client. As I understood the gist of his evidence, it was to the effect that his task was solely to submit plans and specifications, and that the client or someone else engaged by the client should consider any occupational health and safety considerations.

101 Mr Bradbury’s approach to OH&S issues was summed up by the following answer:

“Q: In relation to a brief, did you have any consideration of occupational health and safety?---At that time, OH&S was considered very much the matter of the employer and we were not involved and would never have taken on such an involvement because we’re not qualified.”[114]

One could have understood this evidence being given in the 1930s or perhaps the 1950s, but not in relation to a project undertaken in the late 1990s. Indeed, the Code of Practice for Safe Work on Roofs[115] specifically addresses the question of design planning, albeit not in terms of skylights. The contention of Mr Bradbury that he would defer all such involvement to an applicable building surveyor simply does not wash.[116] Indeed, the expert witness called on behalf of the architect, Mr Quigley, contradicted the ostrich-like approach taken by Mr Bradbury.

102 I was impressed with the evidence of Mr Quigley, which I think can be distilled as follows: in the late 1990s an architect siting air conditioners on the roof of a new building had an obligation to consider the safety of those who might be required to access the air conditioners, and particularly those servicing the air conditioners. In cross--examination, Mr Quigley accepted that an architect in the late 1990s should have addressed the question of the positioning of the units and the provision of safe access to the units,[117] as well as the provision of steps or a small ladder to provide access from the lower roof to the raised roof.[118] He agreed that at the very least the architect should have raised the question of safe access and egress to the packaged air conditioners with the owner.[119]

103 Mr Bradbury should have considered the question of the safety of persons working on the roof. He should have drawn the issue of safe access to the air conditioners, at the least, to the Council’s attention; it should have been discussed at meetings between the Council and architect and, presuming the Council’s approval, appropriate measures should have been specified in the drawings and plans.

104 Notwithstanding these observations, I take the view that the level of responsibility of the architect to be the least of the three defendants. Its role was to advise. In this it failed. Unlike the Council and BAE, the architect had no control over the premises or the working conditions of Mr Iannello. Its role in preparing the plans and specifications ceased a number of years prior to Mr Iannello’s accident, during which there was ample time for both BAE and the Council to consider the risks posed and to take ameliorating action. I assess its contribution at 10%.

Conclusion as to apportionment

105 For the reasons I have set out, I regard the Council as being primarily responsible for Mr Iannello’s accident. It should bear 65% of any contribution between the parties. The employer, BAE, also played a role, but to a lesser degree and should bear 25%. The architect, whose role was considerably removed from the others, should be held liable to contribute 10%.

Contributory negligence

106 The principles in relation to a worker being found guilty of contributory negligence in an industrial accident were set out by the High Court in Bankstown Foundry Pty Ltd v Braistina.[120] Those principles still apply.[121] A worker will be guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonable and prudent person, he would expose himself to the risk of injury. But his conduct must be judged in the context of a finding that the employer had failed to use reasonable care to provide a safe system of work, thereby exposing the worker to unnecessary risks. The question will be whether in the circumstances and under the conditions in which he was required to work, the conduct of the worker amounted to mere inadvertence, inattention or misjudgement,[122] or to negligence, rendering him responsible in part for his injuries.

107 By the conclusion of the trial, the defendants relied upon one allegation of contributory negligence, namely, that Mr Iannello should not have attempted to transfer from the raised roof and “drop” onto the lower roof in a position close to the skylight. It was said that in doing so he put himself in a position of danger as he ran the risk, howsoever he descended from the raised roof to the lower roof, of stumbling and falling through the skylight. In support of this contention it is said that given his experience Mr Iannello knew or ought to have known of the presence of the skylight and the risk of getting too close to it. He should, so the submission went, have walked along the raised roof and descended onto a different portion of the lower roof where there was no risk posed by the presence of a skylight. He should have crossed the roof in line with the position of the ladder. It is said by the defendants that an appropriate reduction for contributory negligence is in the region of 10%.

108 The plaintiff, through Mr Richards SC, contends that no reduction should be made for contributory negligence. Wherever Mr Iannello elected to descend from the raised roof to the lower roof, he was at some point of time going to encounter a skylight, as they were dotted in various places on the lower roof. Each presented a hazard, particularly when taken in combination with the presence of the ribs of the lower roof, which posed a clear tripping hazard if crossed diagonally as opposed to walking up the channel between the ribs. Alternatively, Mr Richards contended that, assuming that Mr Iannello attempted merely to push himself off from the raised roof to the lower roof, that this constituted mere inadvertence or misjudgement and could not, in a work setting, be characterised as amounting to contributory negligence.

109 In my view, there was a greater risk posed to Mr Iannello, of which he should have been aware, by attempting to descend close to the subject skylight. The other skylights nominated by Mr Richards were not adjacent to the raised roof and would only have constituted a potential risk as Mr Iannello walked across the roof to reach the ladder. Notwithstanding this observation, I do not consider that Mr Iannello was guilty of contributory negligence. He was conforming with the system of work (such as it was) as set out by his employer. He was required to do the best he could to negotiate the roof to get to the air conditioners. Immediately prior to descending from the raised roof to the lower roof, he had engaged in servicing the air conditioners and then completing an inspection report as part and parcel of his work duties. Given that no ladder or alternative means of descent was provided for him, it was natural for him to have to push himself off. Whilst he could have chosen a better spot to do so, I do not think that this can be characterised as contributory negligence. As Mr Richards submitted, at best, it could be described as inadvertence or misjudgement in the performance of his work duties.

110 The onus rests on the defendants to establish contributory negligence.[123] In my view, it has not been established.

Assessment of damages of the plaintiff’s claim

Injuries sustained by Mr Iannello and the effects upon him

111 I accept, based on the medical evidence and Mr Iannello’s evidence, that he sustained the following injuries as a result of the fall –

(a) A major injury to his back involving complex crush fractures of the 11th and 12th thoracic vertebrae with additional aggravation of pre-existing degenerative changes of the lumbar spine.

(b) An injury to the cervical spine aggravated pre-existing degenerative changes of the neck.

(d) An injury to the shoulder, and in particular, the left acromioclavicular joint.

(e) Depression related to his physical and cognitive impairment.

Treatment

112 Mr Iannello was taken to the Colac Hospital and then taken by air ambulance to the Alfred Hospital. At the Alfred, radiological investigations noted crush fractures to the 11th and 12th thoracic vertebrae with a possible injury to the supraspinus ligament of the 6th and 7th cervical vertebrae. On 10 February 2004, Mr Iannello underwent a major spinal fusion. Harrington rods were inserted and a bone graft taken from the right iliac crest.

113 He was discharged from the Alfred to recuperate at his daughter’s home in Melbourne. For some time afterwards he underwent weekly physiotherapy and attended both his local general practitioner, Dr Mackay, and Dr Chris Huxtable, an osteopath. He still sees the osteopath and his wife massages his back regularly. He takes anti-inflammatory medication when the pain worsens.

Progress and current symptoms

114 Mr Iannello suffers from ongoing back pain, particularly in the region of the area where the Harrington rods have been inserted (i.e. around the lumbar thoracic region). In general, and subject to one matter I will mention in a moment, I accept the evidence given by Mr Iannello and his wife as to Mr Iannello’s current symptoms and incapacity. He has difficulty carrying out a number of everyday tasks, particularly those that put pressure on his back and his neck. There is a risk of further surgery to remove the rods.[124] Video surveillance of approximately one hour taken in May 2007 showed Mr Iannello to be fairly active in carrying out light activities in the vineyard which he has recently established on his farm. It shows him with relatively unrestricted movement. However, I accept his evidence that after carrying out such work he would have considerable difficulty with his spine.

Medical opinion

115 In February 2006, the treating general practitioner, Dr Mackay, reported that Mr Iannello had “stoically managed to remain productive at his place of employment around three days each week. It is now two years since his injury and, although he can function, as I mentioned is troubled continuously by pain and heavy physical work is sorely curtailed”. He suspected that Mr Iannello will be troubled by pain in the future and that he could perform some of the lighter components of his previous employment, but he would never be able to resume full duties.[125]

116 The treating osteopath, Chris Huxtable, also reported in February 2006 and noted that the Harrington rods inserted into the spine cover five spinal segments and fused their mobility. He thought that it was remarkable that Mr Iannello was back working 24 hours a week but, however, his capacity to work at his previous level was not possible.[126]

117 Mr Iannello has been seen by a number of medico-legal consultants. Mr David Brownbill, neurosurgeon, has seen him on three occasions, the latest being 27 August this year. In May 2005, he was of the view that the fractures of the thoracic spine which had been fused had not produced neurological damage. However, he accepted that Mr Iannello had suffered aggravation of pre-existing cervical spine degenerative changes which gave rise to neck pain. The history taken from Mr Iannello was consistent with a loss of consciousness and prolonged post traumatic amnesia. He thought that Mr Iannello’s intellectual functioning needed to be measured by a neuropsychologist. He was of the view that Mr Iannello would be permanently restricted in carrying out heavier physical activity and that his neck and back pain would continue indefinitely. By 2008, he took the view that Mr Iannello’s condition had stabilised.

118 Dr Maureen Molloy, specialist neuropsychologist, concluded that Mr Iannello sustained a mild to moderate concussive head injury. This had resulted in problems in relation to attention and concentration, and difficulty with short term memory function. Testing indicated problems in relation to attention and concentration which impaired multitasking. These difficulties, Dr Molloy opined, were typical of those found after a moderate head injury. She did, however, notice that there were some psychological matters which also influenced his presentation.

119 Mr Stan Schofield, orthopaedic surgeon, saw Mr Iannello in September this year. He felt that it was likely that the trauma had caused significant aggravation of C6-7 with an injury to the disc at that level. He confirmed significant damage to the T10 and T11 vertebral bodies with the aggravation of chronic degenerative changes at the lumbo-sacral level.

120 Mr Daryl Nye, neurosurgeon, examined the plaintiff twice on behalf of BAE. He diagnosed a moderately severe concussive head injury and a significant spinal injury. He thought that the degree of cognitive impairment was mild and that psychological reaction was playing a part. He felt, in May of 2008, that Mr Iannello had a capacity to function in a workshop situation with restricted time commitment as he had until May 2008.[127]

121 Mr Michael Dooley saw the plaintiff on one occasion in May 2007.[128] He felt that there was no specific treatment, conservative or surgical, that could improve Mr Iannello’s post traumatic symptoms and did not recommend removal of the Harrington rods. He also felt that there had been an aggravation of the underlying degenerative disc disease at C6-7. He noted that there was probably subluxation of left acromioclavicular joint in the fall. He felt that Mr Iannello was unfit for heavy physical work but could perform light physical work and clerical duties. He felt that he would continue to have back and neck pain and intermittent discomfort in the left shoulder.

122 Finally, there was one psychiatric opinion provided from Dr Ivers, a consultant psychiatrist in Warrnambool. He saw Mr Iannello in May 2006. He diagnosed intermittent depressive bouts as a reaction to the pain and also as a result of the organic brain trauma. He felt that he was vulnerable to the aggravation of depressive illness, particularly if he left work. He did not think that he required specific psychiatric therapy and did not make a diagnosis of post traumatic stress disorder.[129]

123 I make the following findings in respect of the medical evidence. I accept the evidence that Mr Iannello sustained a major injury to the spine which required fusion and the insertion of the Harrington rods. Each thought this would be productive of symptoms in the future, as well as the aggravation of pre-existing asymptomatic degenerative changes of the lumbar spine. I also conclude that Mr Iannello suffered a cervical spine injury which is productive of symptoms, as is the injury to the left shoulder. At the present time, the physical injuries have stabilised and the level of incapacity experienced by Mr Iannello will remain indefinitely. The opinion of Ms Molloy, which I accept, that he has suffered cognitive deficit as a result of the closed head injury (notwithstanding the lack of any signs on MRI) means that he will continue to have problems with concentration, memory and managing tasks. His depression, which fluctuates and is not major, will continue into the future and will generally be related to his physical symptoms.

124 No medical practitioner suggested that Mr Iannello could return to heavy work. The consensus was that he was capable of light physical work.

125 Despite the predictions of his general practitioner, Mr Iannello made a recovery to the point where he was able to go back to work and carry out light duties working on switchboards and in the office. He could not perform heavy work.

Capacity to work

126 The thrust of the submissions of Mr Richards was that, in real terms, Mr Iannello’s capacity to carry out work has been destroyed. Although he was able to carry out some light duties at BAE following his return to work over the three months prior to him taking up the age pension, he worked very few hours because that type of work simply did not exist.[130] Manual and heavier work caused him problems. No counsel relied upon the surveillance film as showing anything more than a capacity to do lighter manual tasks.

127 There is one other issue to mention, and that is whether Mr Iannello would have taken up full-time employment with BAE, and if so, when. At the time of the accident, he was working part-time at an average of 17 hours per week. Mr Iannello gave evidence that within 12 months of the accident, he would have been working full-time.[131] His son, Ben Iannello, gave similar evidence and no challenge was mounted by counsel for the defendants to that proposition.[132] Mrs Iannello confirmed her husband’s keenness to remain in work.[133] I accept that at a point roughly 12 months after the accident, Mr Iannello would have taken up full-time employment and that his damages should be assessed on that basis.

128 Whilst it is true, as Mr Scanlon pointed out, that Mr Iannello accepted that his physical capacity to do light work had not changed after May 2008, when he resigned, his chances of obtaining such a job must be minimal. In effect he was in protected employment working for his son and that work collapsed.

129 I am satisfied that the medical evidence, taken with Mr Iannello’s evidence and that of his wife (whose evidence I accept), demonstrates that his level of disability precludes him from returning to work in a real sense. Indeed, counsel for the defendants did not submit otherwise. Rather, their primary submission was that, given Mr Iannello’s sea change by moving to the country, it was unlikely that he would exercise his pre-injury capacity to his full extent if the accident had not occurred. In my view, there is limited force to this submission and, I will address it in the course of my assessment of damages.

Summary in relation to the plaintiff’s claim

130 I assess the plaintiff’s damages as follows:

Pain and suffering

131 BAE and the architect contended that $200,000 was the appropriate allowance. The Council allocated $175,000 whilst the plaintiff put $240,000.

132 The plaintiff has already experienced considerable restriction and impairment of his activities by reason of a serious physical injury. His cognitive function has been diminished and there is a psychological reaction. The impairment of his daily activities will persist indefinitely. An appropriate figure is $200,000.

Pecuniary loss

Past loss of earnings

133 Mr Iannello’s counsel calculated the loss of wages at $116,948, which allowed for an increase to full-time wages after one year and took into account the wages earned when working on light duties. Defendants’ counsel submitted that I should allow $75,000 purely on the basis that the prospect of the plaintiff taking up full-time work required a significant discount. In my view, the plaintiff’s figure should be accepted with a slight deduction for the contingencies and the risk that Mr Iannello would, notwithstanding his determination, have worked lesser hours over the past four years. I assess the past loss of earnings at $105,000, the figure suggested by Mr Richards.

Future loss of earning capacity

134 Applying the agreed multiplier to the agreed current wage of the plaintiff but for injury (226.30 by $778), a sum of $149,652 is obtained. Mr Richards submitted that 10% should be discounted for contingencies, and urged me to accept the figure of $135,000. The defendants, in common cause, suggested that the discount should be higher, given Mr Iannello’s age and the prospect of him easing off, particularly given his interest in the vineyard, and pressed a figure of $100,000. I think there is some force in the defendants’ contention and propose to reduce the figure by approximately 25%. After the normal vicissitudes, the risk of working reduced hours or early retirement are taken into account, I assess the plaintiff’s future loss of earning capacity at $115,000.

Summary

135 Allowing (a) $200,000 for pain and suffering and

(b) $220,000 for pecuniary loss

the plaintiff is entitled to judgment in the sum of $420,000.

Conclusion

136 I have reached the following conclusions:

(a) The plaintiff is entitled to judgment against each of the defendants in the sum of $420,000 plus any entitlement to interest.

(b) The apportionment of contribution between the defendants, pursuant to Part IV of the Wrongs Act, is as follows:

(i) 65% attributable to the Council

(ii) 25% attributable to BAE

(iii) 10% attributable to the architect

137 Subject to submissions counsel may wish to make, I propose to give judgment in accordance with these conclusions. I will defer further consideration of the VWA proceeding until the parties have had the opportunity to consider my reasons.

[1] e.g. Exhibit C1

[2] Exhibits C2 and C3

[3] See Exhibit P1 – photos of the roof taken 4 February 2004

[4] Exhibits P2 and P3 show their positions

[5] Exhibit P3

[6] Exhibit P8

[7] Exhibit D7

[8] C16

[9] Exhibit C18 - quote of Victorian Height Safety Services

[10] Exhibit D13

[11] Exhibit P4, the report of Mr Dohrmann.

[12] Exhibit P6

[13] His report is Exhibit C15

[14] His report is Exhibit T2

[15] T35

[16] T37

[17] T36

[18] T40

[19] T55

[20] T56

[21] T260-261

[22] T36

[23] T41

[24] T446

[25] T623

[26] T623

[27] T446

[28] T267

[29] Exhibits C1, C14

[30] Exhibit C14. However this skylight was located in another area of the roof some distance south-east from where Mr Iannello was working. T636

[31] T443

[32] T498

[33] Exhibit C2

[34] Exhibit C3

[35] T553-555

[36] T453-456

[37] Exhibit P8

[38] T560

[39] T58

[40] Exhibit P4, photo P2

[41] T182

[42] The witness marked the spot on the plan. Exhibit C5. T268.

[43] Exhibit P1

[44] T44

[45] T44

[46] T532

[47] T44

[48] T460

[49] Exhibit P1, photo 129

[50] See Mr Permewan’s report Exhibit C15, P5

[51] Exhibit C15

[52] T653

[53] T180

[54] T180 - 181

[55] T180

[56] T182, 195

[57] T182

[58] T190-193, T256

[59] T208

[60] T208-209

[61] T401-403

[62] T591

[63] T596

[64] T597

[65] See the quotation Exhibit C18

[66] T592

[67] T62-63, T461

[68] See Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422, [26] and [60] - [61]; State of New South Wales v Fahy [2007] HCA 20; (2007) 232 CLR 486; [78], [116] and [220]

[69] T650

[70] [1985] HCA 34; (1985) 59 ALJR 492, 493-494, see also Liftronic Pty Ltd v Unver (2001) 75 ALJR 867, 868, Wynbergen v Hoyts Corporation Pty Ltd [1997] HCA 52; (1997) 149 ALR 25

[71] Alcoa Portland Aluminium Pty Ltd v Husson and Keppel Prince Engineering Pty Ltd [2007] VSCA 209; (2007) 18 VR 112, [86]; see also Moore v Scolaro’s Concrete Constructions Pty Ltd (in liq) [2004] VSCA 152; (2004) Aust. Torts Reports 81-767, [8]-[9]

[72] Andar Transport Pty Ltd v Brambles Ltd [2004] HCA 28; (2004) 217 CLR 424 [62]

[73] Andar Transport Pty Ltd v Brambles Ltd [2004] HCA 28; (2004) 217 CLR 424, [54]

[74] Andar Transport Pty Ltd v Brambles Ltd [2004] HCA 28; (2004) 217 CLR 424, [54]

[75] [2005] HCA 14; (2005) 79 ALJR 839 [14]

[76] T295-296

[77] See Esso Australia Pty Ltd v Victorian WorkCover Authority [2000] VSCA 74; (2000) 1 VR 246, [21].

[78] T288

[79] Exhibit D3, T458-460

[80] Exhibit P 8

[81] T59, 156, 139

[82] T250, T278

[83] T249-250

Authorities Cited16

Referred to (16)