Strategic Formwork Pty Ltd v Hitchen [2018] NSWCA 54. Basten JA, Sackville AJA agreeing, Simpson JA otherwise. 23.3.18.

Of container unloading verdict of Harrison AsJ – [2017] NSWSC 75 – rejected liability and apportionment grounds and shaved damages by $126,500 to $1,173,275, the plaintiff casual backpacker from Britain left partially paraplegic after crushed by a falling stack of 3.6m timber beams inside a container at the second respondent employer’s premises at Corrimal, near Wollongong, in May 2011.

Basten JA: “Like many persons who suffer workplace injuries, the limited damages recoverable from his employer led the plaintiff to sue another company, Strategic Formwork Pty Ltd (“Strategic”) which, he alleged, controlled the operations of RTS at the Corrimal yard,” in [2].

“The claims were heard in the Common Law Division. The trial judge, Harrison AsJ, gave judgment for the plaintiff against both defendants and assessed damages at some $725,000 with respect to RTS and a little under $1.7 million with respect to Strategic. She apportioned liability as to 60% against Strategic and 40% with respect to RTS. Following the application of s 151Z of the Workers Compensation Act 1987 (NSW), the judgment in favour of the plaintiff against Strategic was entered for $1.3 million, in round figures,” Basten JA said [3].

At [46] “There was a range of objective material linking Strategic’s management with the RTS premises at Corrimal. This included signs and instructions over the name Strategic Formwork, the use of hi-vis shirts branded Strategic Formwork, the commonly used description of the yard as the “Strategic yard”, and the email address of the yard as “”. All these were treated by the appellant as administrative arrangements which had survived the split into two companies, with no legal significance. That may be so, but the fact that they continued for two years after RTS commenced business allows an inference that those involved in running the companies saw them as irrelevant. And, on the probabilities, that must be because they still accurately reflected the integrated nature of the business,” Basten JA said.

“Importantly, Strategic produced some 250 pages of emails dated between 8 March 2011 and 31 May 2011, most being instructions from Luke Day, who worked in Strategic’s office in Sutherland, to Mr Gales at Corrimal. Each was addressed to “Strategic – Yard” and involved a subject matter which was, in almost all cases, a reference for a particular contract with a building contractor. Various emails implied that Strategic was playing an active role in the operation at Corrimal. In his written submissions on the appeal, the plaintiff drew attention to the following emails, among others,” [47] such giving detailed instructions.

In [57] “The evidence established that, putting to one side the corporate structure, there was a single integrated business operation, which involved a number of elements, broadly characterised as follows,” and iterated same.

“It follows that the conclusion of the trial judge that Strategic exercised control over the operations of RTS was correct. The remaining question is whether this exercise of control extended to the supervision of occupational health and safety. On the basis of the material set out at [30] and [40]-[43] above, there was express evidence to support the conclusion that it extended to such matters. As Mr Van Der Merwe conceded, his control extended to matters of occupational health and safety. It follows that both Strategic and RTS owed a duty of care to employees of either company working at the Corrimal yard, and probably elsewhere,” Basten JA said [61].

Apportionment of 60% was not outside the range [74].

To damages, remarkable recovery but with serious limitations, Harrison AsJ finding 70% mec [$350,000] for CLA s 16, “…not possible to say the figure was so disproportionate to the underlying circumstances as to reveal error”, in [80].

Reduced past economic loss by about $12,000 for variation in super on return to Britain [83].

To future economic loss – “…the trial judge was not limited to an average wage”, in [91].

In [96] “Some allowance should be made for reduced earnings in the first 20 years, on account of the plaintiff’s disability, but the extent of the future loss is highly speculative. An appropriate approach when assessing the future effects of an injury or likely degenerative changes was identified in Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638 at 643 (Deane, Gaudron and McHugh JJ),” quoting such.

Then, “It is necessary to make some allowance for the significant possibility that the plaintiff will suffer no economic loss at all with respect to earning capacity over the next 20 years. It is quite possible that he will find equally remunerative employment, but employment which will provide less job satisfaction. However, that element is catered for by the award of non-economic loss. The figure proposed by RTS, giving an amount of $170,000 to age 50 should be accepted,” Basten JA said [97].

“The judge assessed a loss of earning capacity from 50 years of age at $212,622.84. That calculation was based on the proposition that the plaintiff would work half time from 50 to 55 years of age and would retire at 55, thereby requiring an allowance of the full net weekly wage ($1,200) for the 12 years from 55 to 67. The deferred payment calculations appear to have been undertaken by the parties,” his Honour said [99].

“Finally, after setting out the basis for her calculations from the age of 50, the judge stated that “[a] future allowance of $50,000 should be made for periods of unemployment and additional sick leave”. It must have been intended that that amount should be included in the calculation of future economic loss for the period whilst the plaintiff was working full-time. However, no such amount was included in the schedules of damages prepared by the parties,” [106].

“Accepting the approach proposed by the trial judge at [328], and omitting the $50,000 cushion and the amount of future superannuation, the appellant identified the appropriate sum as $196,601. Adding an additional amount on account of future superannuation, calculated at 3%, as proposed by Strategic in its schedule at trial, it is appropriate to treat this as, in round terms, $200,000,” [107].

“Accordingly, the figure for future economic loss is $370,000,” [108].

Orders, substituting $1,173,275 as the appellant’s damages liability to the plaintiff, otherwise appeal dismissed, the plaintiff’s cross appeal dismissed with no order to costs, the appellant to pay 90% of the plaintiff’s appeal costs, and the employer’s appeal costs.

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