Hossain v Unity Grammar College Ltd and Ors

1. [1]

   The plaintiff, Mr Hossain, suffered very serious injuries in a gas explosion on 10 February 2010 at Unity Grammar College (“the College”), where he worked. The College is the first defendant. Mr Hossain had commenced employment on 4 May 2009 as caretaker and night watchman for the College. The other active parties are: the third defendant, Insurance Australia Limited; the sixth defendant, Five Star Universal Plumbing Pty Ltd; the seventh defendant Elgas Ltd; and the third cross-defendant Bernie Cohen and Associates Pty Ltd. These active parties will be referred to as “IAL”, “Five Star”, “Elgas” and “Cohen” respectively. Their role in the proceedings, for introductory purposes, may be described in these broad terms:

Agreed facts

1. [2]

   Certain important facts were agreed by all active parties (Exhibit B). I will summarise them in my own terms.

2. [3]

   In 2007 and 2008 Binah was the principal contractor for the construction of the College. By agreement dated 21 June 2007 Binah engaged Enma Plumbing Pty Ltd (“Enma”), now also deregistered, uninsured and not a party to the proceedings, to carry out work including the installation of the LPG system (“the gas installation”) at the College. When carrying out this work Enma installed what is referred to in the expert evidence as a second stage regulator, connected to and forming part of the gas installation, in the ceiling of Building “D”. The placement of the regulator in that location was contrary to the instructions of the manufacturer of the regulator, the provisions of Australian Standard 5601-2004 and the provisions of the Dangerous Goods (Gas Installations) Regulation 1998 (NSW) (Repealed) (“DGR”). I add that the DGR was repealed by Gas Supply Amendment Regulation 2010 (NSW), made under the Gas Supply Act 1996 (NSW), with effect from 3 September 2010.

3. [4]

   In November 2007, under a contract with the College, Elgas delivered a 2.4 KL LPG storage tank to the College. On or about 11 February 2008, Elgas supplied 2138 litres of LPG gas to the gas tank. Between February 2008 and February 2010, the gas appliances at the College were connected to the LPG installation installed by Enma and supplied with gas from the storage tank.

4. [5]

   In 2009 Five Star was engaged to, and carried out, work on the second stage of the building works at the College which included the installation of a new gas line connected to the existing gas line installed by Enma at its tank end. I interpolate that other evidence establishes that Five Star quoted for this work on 6 July 2009 and had probably completed the quoted work by 20 November 2009 when the College made the third of three payments in 2009 to Five Star. I also add, it was intended that additional gasfitting work including the connection of appliances would be carried out on second stage of the building works at the College when construction advanced sufficiently. Five Star capped its line it at its output end.

5. [6]

   By 10 February 2010, LPG gas, which had vented from the regulator, settled in the ceiling space of building “D” and into the floor below, and on that day, exploded. As a result of that explosion the plaintiff suffered severe personal injury.

Context

1. [7]

   That “hard cases make bad law” is an aphorism well known to lawyers, the meaning and validity of which is often controversial. It comes to mind in the present case because, as I have indicated, none of the active parties responding to Mr Hossain’s claim directly performed work which, by the act or omission of any of them, was the proximate cause and origin of the explosion and subsequent fire in which Mr Hossain received his severe injuries. Had Enma been a good common law defendant either in its own right or through adequate insurance none of the present responding parties might have been an essential party to the proceedings. I should add that I borrowed the expression “direct and proximate cause” from insurance law deliberately to emphasise the importance of Enma’s negligence as a cause of the explosion and Mr Hossain’s injury. Apart from the case against the College, the test for causation in negligence cases is found in s 5D Civil Liability Act 2002 (NSW). As against the College the common law subsists: s 3B(1)(f) Civil Liability Act.

2. [8]

   However the concept of joint or several liabilities is one very familiar to lawyers, particularly in the law of negligence. In proceedings for the recovery of damages for personal injury, which are unaffected by the provisions of Part 4 Civil Liability Act, a plaintiff may bring an action against each tortfeasor liable in respect of the same damage and obtain judgment against each for the whole of her or his loss (subject to statutory modifications to the quantum of damages recoverable in a given category of case). She or he may not recover more than full satisfaction for his loss from one or more of the tortfeasors. The loss may be spread among the various tortfeasors liable in respect of the plaintiff’s damage by orders for statutory contribution under s 5 Law Reform (Miscellaneous Provisions) Act 1946 (NSW) (“LRMPA”). This principle was expressed in the Scottish case of Grant v Sun Shipping Co. Ltd [1948] AC 549 at p 563 by Lord Du Parcq in the following way:

3. [9]

   It follows that there is nothing “hard”, unusual or contrived about a negligence case for the recovery of personal injury damages where a principal player is absent from the cast. The mere fact that the negligence of one, absent tortfeasor’s negligence may be styled the direct and proximate cause of an injury does not exonerate other negligent parties. The question for determination in the case is whether any of the active parties are legally responsible for Mr Hossain’s injuries.

Circumstances of the plaintiff’s injury

1. [10]

   In his evidentiary statement of 10 July 2014 (Exhibit D), Mr Hossain described the circumstances of his injury of 10 February 2010 in the following terms (at p 4[20]):

2. [11]

   There is a suggestion arising out of the evidence of Inspector Erika Groll, the lead investigator from the WorkCover Authority for the investigation of the explosion, that the explosion may have been caused by Mr Hossain lighting a cigarette. This suggestion arises out of the record she made at page 4 of her notebook (Exhibit F) that “cigarettes and lighter” had been found within the blast site. Her factual report (Exhibit C, p156) recorded that police and fire fighters were of the view “that the incident involved an LPG leak from the regulator and that the ignition source was unknown.” The regulator was located above a toilet cubicle within or near the storeroom. Some of the pleadings on behalf of the defendants raise as a particular of contributory negligence that the plaintiff was lighting a cigarette (contrary to school rules) when the explosion occurred and that this was the source of ignition. The plaintiff was barely cross-examined about this and no defendant argued that I should make such a finding. Had lighting a cigarette been the ignition source, contributory negligence would not necessarily follow. Mr Hossain did not know and could not have known of the failure of Enma to vent the regulator to the atmosphere, or of the accumulation of released gas. He had noticed a “funny smell” in the storeroom the previous day, but this is nothing, in my view, to alert him to the great danger he faced.

3. [12]

   Mr Hossain’s evidence is that the cigarettes and lighter were in his pocket. I accept his evidence that the conflagration was immediately preceded by him turning on the light switch. Ignition by spark either in the light switch or in the fluorescent light fittings in the storeroom, according to the expert evidence, is a possible source of ignition (see for example Mr Ross Brown’s report of 9 July 2014, p 10 [41]). In his report of 21 September 2015, Mr Peter Wenning (p 6 [19]) stated:

Additional primary facts relevant to liability

1. [13]

   It is convenient to deal with some other matters of primary fact relevant to the decision on liability. There have been some difficulties with fact finding. The explosion occurred nine years ago. The contemporaneous documents are not complete or comprehensive and not all witnesses who might have been able to give direct evidence of relevant facts have been called. The omissions have been mainly from the defendant’s side, it must be said. IAL did not call any witness from Binah. Mr Khalil Hafza, as I have said, is both the guiding mind of Binah and the chairman of the Board of the College. For what it is worth he is also a shareholder and director of the company which owned the land, Crescent Investments Australia Pty Ltd. As I state below, Elgas called only Mr Lewis Nottidge, its NSW Regional Manager and Manager of its Blacktown plant at the time of the explosion, now its National Technical Manager and a chemical engineer by profession.

2. [14]

   Mr Nottidge had no direct involvement in the supply of the tank and the gas to the College. Nor was he in the direct chain of command of those who were. His evidence is very much in the abstract. He was copied into an email about the explosion from Ram Ramjas, Elgas’s NSW Project/ Safety Manager (Exhibit F, p21A) on 11 February 2010. Mr Ramjas had attended the blast site on that day to meet with the WorkCover inspectors (Exhibit C, p 127; Exhibit F, p21-22). But Mr Ramjas was not called to give evidence. Mr Nottidge conceded that he had no direct knowledge as to the circumstances of the delivery of gas to the College. His “knowledge” was acquired by reading the email from Mr Ramjas (258.10 -35T). From paragraph 12 of his statement (Exhibit 7D1), it is also obvious he had read Mr Ramjas’s email to WorkCover of 12 February 2010 as he picked up language directly from it. On Mr Nottidge’s evidence, Mr Ramjas himself had no direct knowledge of whether the delivery of the gas on 2008 was for the purpose of testing and commissioning hot water heaters rather than for general use in the gas installation (258.30-35T).

3. [15]

   The persons who had direct involvement with Elgas’s contract with the College included Michael Marmara, the New Business Sales Manager, Marie Henriott, Customer Service Operator and Mr John Everingham, the tanker driver who delivered the gas. All of these people were still employed by Elgas as at the date of the hearing. None of them was called to give evidence. Neither Mr Hafza nor anyone else was called on behalf of the College (or Binah for that matter). And the certifier responsible for the construction work at the College employed by Cohen, Mr Trenton Jones, was not called. Of the persons on the defendants’ side of the record who may be supposed to have had direct knowledge of any relevant fact matter or circumstance, only Mr Khaldoun Afiouni, a principal of Five Star was called to give evidence.

4. [16]

   In weighing the evidence in relation to disputed questions of fact, I will bear the circumstance of absent witnesses in mind in accordance with the principles discussed in Blatch v Archer (1774) 1 COWP 63; 98 ER 969, and Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8, where applicable.

Expert witnesses

1. [17]

   Four experts gave evidence in the proceedings: Mr Bill Armstrong, an experienced plumber and gasfitter; Mr Ross Brown (mentioned above), a hydraulic engineer; Mr Hamish McGill, a hydraulic consultant and Mr Peter Wenning (also mentioned above), a consultant in hydraulic services. In accordance with the Court’s usual practice, the experts conferred and produced two joint reports, the first dated 8 May 2018, Exhibit H.1, and the second dated 30 July 2018, Exhibit H.1A. They also gave oral evidence concurrently (397 – 488T). There was almost complete unanimity amongst them. In Exhibit H.1 they explained that the second stage regulator installed in the ceiling of Building D was not in compliance with DGR and applicable Australian standards because it, and more importantly its “breather vent”, was located internally within the enclosed roof space of the building. The experts agreed that the breather vent needed to be extended to the atmosphere. When answering question 6 in Exhibit H.1, the experts stated:

2. [18]

   From this and like answers to other questions in the joint reports, I draw the inference that best practice requires the regulator to be installed outside the building (see also the answer to 3(a) Exhibit H.1). But venting to the atmosphere by other means would have been satisfactory for safety reasons, even if not so satisfactory for meeting service requirements. It should be recorded that after the explosion, as part of the re-instatement works Five Star reinstalled a second stage regulator by affixing it to the external wall of Building D.

3. [19]

   When asked at question 4 of Exhibit H.1 whether they agreed that venting the regulator to the atmosphere would have prevented the build-up of LPGas in the building and thereby the explosion, the experts’ answer is recorded as follows:

4. [20]

   In expressing their opinions in writing and in oral testimony, the experts referred to DGR and certain Australian standards. Naturally the experts are not entitled to give opinions of law, or authoritative interpretations of other documents such as the standards. On the other hand, DGR and applicable Australian standards are not intended solely, or even primarily, for the courtroom, barristers’ chambers or solicitors’ offices. They regulate the performance, inter alia, of gas installation work. Practitioners in the field need to be familiar with them and have an understanding of what they require in the practical performance of the work. For the experts to adequately articulate their opinions and provide reasons for them, to demonstrate that they are wholly or substantially based upon their specialised knowledge, it is necessary for them to express themselves by reference to DGR and applicable standards. Any dispute about the legal meaning of DGR and the applicable standards is a matter for me. To the extent to which it may be shown that any opinion expressed by an expert proceeds on the basis of a misunderstanding of the meaning of DGR and any applicable standard, that is a factor to be taken into account in assessing the weight to be afforded the opinions expressed.

Was a compliance plate attached when the gas was supplied?

1. [21]

   An important issue of fact arose in relation to the legal liability of Elgas in the context of the requirements of cl 16 DGR. To provide context it is perhaps useful to set that provision out in full. It is in the following terms:

2. [22]

   The question arises in this way. As is apparent, cl 16 prohibits a supplier like Elgas from supplying gas to a gas container or tank that is connected to a gas installation unless a compliance plate is attached to the installation. cl17 must also be borne in mind for it prohibits connecting a gas container to a gas installation unless a compliance plate is attached to the installation. And cl 15 prohibits a person from using a gas installation, in my view including by operating an appliance connected to it, unless a compliance plate is attached to the installation. Clauses 15 and 17 are subject to an exception in the same terms as cl 16(3). These exceptions should read with cl 11. That provision requires a gasfitter working on an installation to detach any compliance plate before the work is carried out and attach, inferentially, a new compliance plate after the work is completed; in the latter case, unless the certificate of inspection required under cl 10 DGR, which follows the completion of the work, indicates the installation is patently defective. By cl 11(2)(d) the required compliance plate must be attached in a conspicuous position at or near the point of connection between the tank and the installation.

3. [23]

   Elgas’s position is that Mr Hossain has failed to clear three hurdles of primary fact essential to making a case against it. It does not concede that if those facts had been proved it would, in any event, be legally liable. I will deal with these latter mixed questions of fact and law below. The matters of primary fact in contention are that: Mr Hossain has failed to prove the absence of a compliance plate when it supplied the College with gas on 11 February 2008; alternatively, he has failed to prove the tank was connected to the gas installation at that time; and further in the alternative he has failed to prove the supply was not for anything done in the course of carrying out the gas fitting work or in the course of testing the gas installation in accordance with cl 16(3) DGR: witness statement of Lewis Nottidge Exhibit 7D1 paragraphs 12, 13 and 14.

4. [24]

   There is no real issue, in my mind, that when Elgas supplied the 2138 litres of LPG on 11 February 2008, the gas installation installed by Enma had no compliance plate attached. I make this finding because when Elgas arranged for the gas tank to be inspected by Victorian Inspection and Consulting Pty Ltd (Exhibit 7D6) they left blank the section of their report that required the recording of the “NSW Compliance No”. That inspection occurred on 23 January 2008. Moreover it is convenient to record my finding now that, then, the gas tank was not connected to Enma’s gas installation. I infer this from a comparison of the photograph forming part of Exhibit 7D6 with the photograph (Annexure B) attached to the witness statement of Mr Khaldoun Afiouni dated 24 July 2018, (Exhibit 6D1). The copper piping running from the gas tank which piping forms part of the installation is clearly visible in the latter photograph and its absence seems clear in the former. Both photographs are taken from a broadly simIALr perspective. Mr Afiouni’s photograph also shows the new line he installed, which is connected to the old line installed by Enma (Exhibit 6D1, [16]). When shown photograph Exhibit 7D6, the experts were intially somewhat unclear about what it showed, if anything about whether the tank was connected to the installation (416.40-418.30T). However in the end Mr McGill and Mr Brown agreed in substance that further work was necessary when Exhibit 7D6 was taken to connect the tank to the installation. And this work must have been carried out later.

5. [25]

   As I develop further below, Mr Afiouni said that he did not remove any compliance plate from the gas tank before commencing his 2009 work. There was no compliance plate attached. Perhaps somewhat contradictory, he also said he was unaware of the requirement to detach a compliance plate before carrying out work (139.05-45T). And later, because he regarded his work as new work he did not look for the old compliance plate (153.40T). The compliance plate depicted in the photograph which is Annexure C to his statement was the one he attached in 17 June 2010 after he had completed all of his work at the College, and WorkCover required him to go over the whole school “and make sure everything was compliant” (142.35T).

6. [26]

   I infer that quite clearly there was no compliance plate affixed to the installation when Five Star commenced its gasfitting work. His evidence was that he would not have been concerned by its absence because in his experience, a supplier would not supply gas to a tank which was connected to an installation unless a compliance plate was attached. As there was gas in the tank he assumed the compliance plate must have been attached at the time of supply but had subsequently gone missing as, he said, sometimes occurs (139.40-140.05T). Evidence that compliance plates sometimes go missing was also given by Mr Nottidge.

7. [27]

   This I must say is contrary to the evidence of the experts who gave concurrent evidence before me. It may be that they would accept that a compliance plate may sometimes go missing. Common sense suggests as much. However, in my words, the absence of a compliance plate from an installation connected to the gas container should be a “red flag” to a supplier and a gasfitter coming to the site to do work. Specifically the experts were of the view that a supplier should not supply gas in the absence of a compliance plate: “no compliance, no supply”: 431.25-436.15T; 437-443.5T.

8. [28]

   Subject to Elgas’s contention about a supply “for testing and commissioning” purposes, This aphorism is borne out by Elgas’s conduct after the explosion when it turned the gas off and refused to re-instate the service until it received evidence of compliance: Exhibit C, pp128-132.

9. [29]

   My finding that no compliance plate was ever fitted by Enma is reinforced by WorkCover Inspector Groll’s evidence about her contact with Mr Khalil Hafza during her investigation. Mr Hafza, as I have said, was the chairman of the school’s board and he was also the guiding mind of Binah. Mr Hafza told the inspector that “he did not have a certificate for gas installation” (Exhibit F, pp 65-68; 139.33T).

10. [30]

    Moreover the Final Occupation Certificate for the College issued by Cohen (Exhibit 1D1, pp 7A ff) on or about 25 January 2008 confirms that a certifier undertook the final inspection at the College on 24 January 2008. The occupation certificate sets out other certificates and documentation taken into account by Mr Jones in certifying the College fit for occupation, including various compliance certificates. Among those certificates are a fire hydrant final safety certificate dated 14 January 2008 and a compliance certificate for plumbing and drainage work dated 17 December 2007 both issued on behalf of Enma by its principal, Mr Toufic Arab. There is, however, no mention of the certificate of inspection required under cl 10 DRG, which must be furnished by the gasfitter upon completion of the gasfitting work and following inspection to either the owner of the gas installation or a person having control or management of it. In my view Binah would meet the latter description. Had it received the certificate of inspection from Enma the probabilities are that it would have passed it on to the certifier.

11. [31]

    When one considers no certificate on 23 January 2008, the absence of the provision of a certificate of Inspection to the certifier, the statement of MR Hafza to Inspector Groll and the absence of the compliance plate when Mr Afiouni first attended the site to carry out work in July 2009, the strong inference is that no compliance plate had ever been attached to the gas installation as required by cl 11 DGR. This finding is further reinforced by the consideration that the main thrust of Elgas’s evidence, such as it may be, is that cl 16 DGR did not apply because the “initial” supply was for the purpose of testing and commissioning the installation which seems to involve a tacit acceptance that probably no compliance plate was attached. I draw the inference more readily given the failure of Elgas to call its truck driver to give evidence.

Was the tank connected to the gas installation as at 11 February 2008

1. [32]

   I turn then to the question whether the plaintiff has proved on the balance of probabilities that when the gas was supplied on 11 February 2008, Enma’s gas installation was connected to Elgas’s tank. There is no direct evidence either way proving or disproving this fact. What is known is that on 20 September 2007, Enma issued progress payment claim no. 2 to Binah (Exhibit C; p 111 – 112), a description of part of the work included in the claim was “gas service in ground complete”. The progress claim was approved or certified by Binah (Exhibit C p 116). It is also clear from what I have said above (at [20]) that the “gas service in ground complete” had not been connected to the tank as at 23 January 2008 (Exhibit 7D6, Annexure B to Exhibit 6D1). The experts agreed that to perform the additional work connecting the in ground gas service to the tank, including the attachment of the Stage 1 regulator and the flexible pigtail pipe between it and the tank valve would take somewhere between “4 hours and a day” (421.25 - .45T). I bear in mind that some of the pipe work shown in Annexure B to Exhibit 6D1 is work performed by Mr Afiouni. Installing a single line for the connection to Enma’s installation probably then would have been closer to the 4 hours than the day.

2. [33]

   Elgas put to the experts during concurrent evidence that testing the installation and commissioning the appliances were one and the same thing. But what was made clear to me is that although the hard copper piping may be attached to the first stage regulator before attachment of a compliance plate, the actual connection of the first stage regulator to the tank by way of the flexible “pigtail” connection should not be undertaken until the compliance plate is attached. The connection of the first stage regulator to the tank “takes about 15 to 30 seconds to complete” (Mr McGill 422.45 – 423.10T). The experts described the process in their second joint report of 30 July 2018 (Exhibit H.1A). They agreed at page 2.2:

3. [34]

   Mr McGill said (at 425.20T):

4. [35]

   Elgas suggested to the experts that as cl 16 DGR mainly prohibited supplying gas to a tank that is connected to a gas installation, there was no prohibition in supply to an unconnected tank. Mr Wenning drew attention to what he referred to as the “LPG Gas Code, AS 1596, Distribution Code, Installation Code”(see cl 8 DGR). He read from cl 11.2.4:

5. [36]

   A series of propositions were put to the experts (433 – 434T) on behalf of Elgas underpinned by an assumption that gas was delivered before the connection of the tank to the installation so that the gasfitter could move through each of the four sequences described by the experts in relation to testing and inspection, certification, supply and purging and commissioning on the same day. Mr Brown was quite clear (435.5 – 437), the gas fitter cannot have any gas supplied until the compliance plate is attached.

6. [37]

   Despite repeated and repetitious attempts to secure the agreement of the experts that supply of gas before certification and connection may be a reasonable approach if a gasfitter wished to complete the final stage of the job one tranche of about 4 hours work, the experts were steadfast in stating their opinion that there should be no supply until certification.

7. [38]

   I should also record that there was no direct evidence that Enma returned and completed the work of installing, testing, inspecting, certifying, connecting to the tank, purging and commissioning the appliances in a single shift. In truth the assumptions the experts were asked to make for the purpose of Elgas’s case had no foundation whatsoever in the evidence before me, whatever the legal meaning of the clauses of the regulations.

8. [39]

   The College acknowledges that there is no direct evidence of the date on which Enma completed its gasfitting works for Binah. It suggests that the issue of the final occupation certificate under s 109H Environmental Planning & Assessment Act 1979 (NSW) (“EPA”) is “the most powerful evidence” of the date by which Enma had completed the works, which I take to mean installing the final length of the pipe between the in-ground pipe and the tank, testing, inspecting, certifying and connecting the installation to the tank. I interpolate, I am not satisfied, as I have already said, that Enma took the necessary steps in relation to certification of issuing the cl 10 certificate of inspection and attaching the cl 11 compliance plate. Although the final occupation certificate appears to have been faxed to the College on Tuesday 29 January 2008 (Exhibit 1D1, p 7) the body of the document indicates that the certifier’s determination was made on 25 January 2008 (Exhibit 1D1, p 7D) and a preliminary final inspection occurred on 16 January 2008 with the final “OC” inspection carried out by Mr Jones occurring on 24 January 2008. Under the heading “Final Report” (Exhibit 1D1, p 7C) is the following:

9. [40]

   These statutory provisions make it unlikely to my mind that Cohen would have issued a Final Occupation Certificate had the work on the gas installation remained unfinished as depicted on Exhibit 7D6 on 23 January 2008. And of course absent a Final Occupation Certificate, the College could not have commenced to operate as a school at the beginning of the first school term of 2008 as it did. Although the window of opportunity is narrow, this makes it likely that Enma performed the work of laying the hard pipes that connected the in-ground installation to the first stage regulator, carried out (or not) such testing and inspecting of its installation as it considered necessary and connected the installation to the tank some time on 23 or 24 January 2008.

10. [41]

    With the benefit of hindsight, it is apparent that Enma were ignorant of the requirements of DGR and applicable Australian Standards for the location of stage 2 regulators. It was probably ignorant of the requirements of DGR as to certificates of inspection and compliance plates. However, given the College was about to begin operation as a school, Binah, as principal contractor, would have been under pressure to complete the project and obtain the Final Occupation Certificate to enable the College to commence operations at the start of the school term. This seems especially so given Mr Hafza’s “two hats” as Chairman of the College board and principal of Binah. It just seems improbable, as I have said, that a Final Occupation Certificate could issue if the gas tank had been unconnected to the gas installation on the occasion of Mr Jones’ Final Occupation Certificate inspection.

11. [42]

    I appreciate in arriving at these conclusions I have relied upon what I regard as the apparent logic of events and the significance of such contemporaneous documents as I have available to me. But I have also applied Lord Mansfield’s “maxim” from Blanch v Archer given the complete absence of witnesses from the defendant’s side of the record who doubtless could have cast light on this factual issue. I have in the light of that maxim considered what might otherwise be fairly slight proofs to be sufficient. In drawing the inference that the tank was connected to the installation, I have borne in mind the permissible reasoning process arising out of Jones v Dunkel.

12. [43]

    There is in evidence as part of Exhibit 1D1, a lease between Crescent Investments Australia Pty Ltd, and the College for a term of 25 years commencing on 1 January 2010 and 31 December 2034. However, nothing turns on the commencement date. It is clear that the school commenced operations in 2008. The significance of the lease is that it demonstrates the involvement of Mr Hafza who was involved with all three of the College, Binah and the owner. He would obviously have been in a position to cast light on at least some of the uncertainties in the evidence.

Did Elgas supply the LPGas for testing and commissioning

1. [44]

   On the findings I have made so far that is to say, that no certificate of inspection was issued to Binah (or the College) as required by cl 10 DGR, no compliance plate was attached to the installation in a conspicuous position near its connection with the gas tank in compliance with cl 11 DGR and the installation had been connected to the tank before 11 February 2008, it is strictly unnecessary to consider the third question of fact raised by Elgas which is whether the supply on 11 February 2008 was covered by the exception to cl 16(1) DGR found in cl 16(3) DGR. That is to say, that the supply of gas on 11 February 2008 was for something done in the course of carrying out of gasfitting work or in the course of testing the gas installation by Enma.

2. [45]

   There may be a question about whether Mr Hossain or Elgas carried the onus in relation to engaging the exception in cl 16(3) DGR. At the very least Elgas would carry an evidential onus in regard to that matter which it has sought to discharge by its cross-examination of the experts and by the evidence of Mr Nottidge, to which I have already referred above. I have already said that there is simply no evidential foundation for the theory of the case that Enma had not completed the gas installation and connection of the tank to it before 11 February 2008. With respect, there is no evidential foundation, as I have said, for the hypotheses which the experts were asked to accept in relation to that matter and in my assessment of their evidence, which I have already detailed, I am satisfied that they were steadfast in their opinions that, from the gasfitter’s point of view, no occasion would arise for requesting a delivery of gas before certification.

3. [46]

   The evidence of Mr Nottidge pointing the other way is to say the least, exceedingly thin. I repeat that Mr Nottidge at the relevant time was the Regional Operations Manager for central New South Wales and the manager of the Elgas plant at Blacktown. However, he had no direct involvement in the contract with the College, the supply of the tank and the subsequent supply of the gas. The whole of his knowledge is derived from his review of documents. He had read Mr Ramjas’s email to WorkCover of 12 February 2010. That is the document referred to in the first sentence the portion of his statement which I quote below ( Exhibit 7D1, [12] – [13]):

4. [47]

   A hot water heater is a gas appliance as defined in the dictionary to DGR. The DGR dictionary and operative provisions make a distinction between a gas appliance, a gas container and a gas installation. In particular a gas installation means a system of pipes and associated fittings that is designed to convey gas from the control valve or other connection point of a gas container to the control valve or other connection point of a gas appliance or of another gas container. It includes any fitting associated with the installation but does not include a gas container. I take a regulator to be a fitting associated with a gas installation. Regulator does not seem to be a defined term. Gasfitting work is defined in exhaustive terms which include the following:

5. [48]

   Clause 17 provides important context. It prohibits a gasfitter from connecting a tank to an installation unless a compliance plate is attached to the latter. This is subject to an exception similar to cl 16(3) for gasfitting work and testing of a gas installation. Clause 17 is in the following terms:

6. [49]

   If one returns to cl 16 DGR and the constraints on the supplier of gas, we see that the prohibition relates to the supply of gas to a gas container that is connected to a gas installation unless a compliance plate is attached to the installation. While connecting a hot water heater to the installation may be gasfitting work for the purpose of cl 16(3)(a), testing or commissioning a gas appliance is not. The only testing to which cl 16(3) applies is testing of the gas installation. This would extend to a gas regulator because it is a fitting associated with the installation, but it would not extend to testing a container or, for that matter, a gas appliance. On the face of it, Mr Nottidge’s description of the purpose of the supply of gas being “to test and commission instantaneous hot water heaters” is not covered by cl 16(3); that is to say it does not fall within the exception.

7. [50]

   Mr Nottidge gave much evidence about it being Elgas’s practice not to deliver only second or subsequent supplies of LPG in the absence of a compliance plate. The practice permitted the first supply of gas for use in a new installation in the absence of a compliance plate. In my view, this practice is entirely contrary to the plain words of the regulation. Unless it was actually specified that a delivery, or supply, is required for a purpose covered by cl 16(3) to the actual knowledge of the person at Elgas organising the supply, the practice is obviously dangerous and inappropriate. It is also contrary, I accept, to the practice of gasfitters articulated in the expert evidence I have heard and accept. I find this evidence of Elgas’s “practice” implausible.

8. [51]

   It was part of Elgas’s case that DGR did not prohibit the delivery of gas to a tank which had yet to be connected to a gas installation. And that this could be done at any time regardless of the reason for it. This was said to be legally permissible from a literal or grammatical reading of cl 16(1). It is unnecessary to consider this in detail as I have found the tank and installation were connected before 11 February 2008. Sometimes a literal reading of a statute imposing a penalty is the most appropriate approach. On the other hand, here where DGR closely regulated gas installations and imposed an inter-connected and inter-dependent network of obligations on gasfitters, users of gas installations and appliances and suppliers that approach may not be applicable. I am of the view that supply of gas to a container to be connected to a gas installation is prohibited unless a certificate of compliance is attached to the installation. Given that LPG is potentially dangerous, indeed explosive, the intent and purpose of cl 16 is to prohibit the supply of gas which is to be used in an installation until the installation has been certified as compliant. We can see this is how Elgas conducted itself even after the installation had been renewed by Mr Afiouni. It declined to restore the gas supply until it had received certificates of inspection under cl 10 DGR (Exhibit C, pp 128-132). At the same time Mr Afiouni attached a compliance plate in accordance with cl 10 DGR. I appreciate that while this was occurring the tank was approximately 70% full. Even so Elgas denied access to the gas until appropriate evidence of compliance with DGR was produced to it.

9. [52]

   More importantly, as I have already pointed out the sole source of Mr Nottidge’s “knowledge” of the purpose of the delivery to the College on 11 February 2008 was information he garnered from reading Mr Ramjas’s email of 12 February 2008 (Exhibit C, p 128). Mr Ramjas, who I emphasise was available, but not called, in his internal email of 11 February 2010 to Elgas officers following his site visit (Exhibit C, p 127), to which Mr Nottidge was copied-in, had said “the first fill (for testing) was done on 11 February 2008 – 2138 [litres] delivered”. He went on to say, “Elgas policy is we do not CONTINUE to deliver to any customer’s installation until the “compliance plate details” are obtained”. Its notable in this email Mr Ramjas does not say what was supposed to be tested. In his email to WorkCover of 12 February 2010 at 11:32 a.m. (Exhibit C, p 128) which Mr Nottidge read for the purpose of preparing Exhibit 7D1, Mr Ramjas said:

10. [53]

    Quite apart from the consideration that Mr Ramjas was not called to give evidence, it is abundantly clear that these emails were written in circumstances where he knew that LPG supplied by Elgas had been involved in an explosion at a school and a worker there had been very seriously injured with extensive burns to his body. He also knew that WorkCover were carrying out an investigation because he had attended the site on 11 February 2010 and met with Inspector Groll and her associate Nissa Ditcher. He does not seem to have made any exculpatory statement at that time (Exhibit F, pp 21-22). He had also been told that police and fire brigade officers had previously been on the site and he later spoke to officers from each of those services by telephone. I would infer that he had been made aware of the absence of the compliance plate for he said the following in the email of 11 February 2010:

11. [54]

    It is also apparent from (Exhibit C, p 127) that the attention of Elgas was drawn to the incident by insurers. It is clear from the fragments of the email chain which appear at the foot of p 127 that Elgas was concerned to distance itself from any prospect of liability.

12. [55]

    There is simply no record contemporaneous with the actual supply of gas produced confirming that the delivery for 11 February 2008 was requested merely for the purpose of testing anything. I also accept the evidence of the experts that gas is not used for testing an installation, compressed air is. Gas is used for purging air from the installation after connection to the container (which follows certification) and to commission the gas appliances. It is also not unimportant that Mr Armstrong gave evidence that the quantity of gas reasonably required for the purpose of commissioning “would be less than 50 litres” (454.35T). Mr Wenning agreed (455.25T). Mr Brown and Mr McGill were unable to say in the absence of the hydraulic plans which would enable a calculation to be made.

13. [56]

    I am mindful that Mr Ramjas’s emails were tendered in Mr Hossain’s case, otherwise there may have been a question about their admissibility under s 69(2) or (3)(b) Evidence Act 1995 (NSW). The consideration that Mr Ramjas has been shown not to have direct knowledge of the represented facts reduces the weight that might have been afforded this evidence to virtually zero.

14. [57]

    Were it necessary to make a decision on this third question of fact, I would not be prepared to act on the evidence of Mr Nottidge, especially given that Mr Ramjas had no direct knowledge of, or involvement in, the delivery of 11 February 2008, and in the absence of the persons identified above who still work for Elgas and who might be supposed to have some direct evidence about the circumstances of the supply of gas on 11 February 2008 but who were not called to give evidence at the hearing.

Legal issues

1. [58]

   In Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420; [2009] HCA 48 a unanimous High Court of Australia said, of negligence cases generally, (at [11]):

2. [59]

   I have already said (at [51] above) that the intent and purpose of DGR is to closely regulate gas installations and their use by imposing an interconnected and interdependent network of obligations on gasfitters, users of gas installations and appliances and suppliers.

3. [60]

   The provisions relevant to the present case are found within Part 2 DGR which is entitled “Fixed, mobile and portable gas installations”. Divisions 1 and 2 are applicable. To provide an overview, cl 7 requires gas fitters to be qualified. Clause 8 requires gas fitting work to comply with certain standards. We are concerned here with a fixed (LP Gas) installation which must comply with AS 1596: LP Gas storage and handling, as in force from time to time. Clause 9 requires a gasfitter, immediately after completion of gas fitting work on a gas installation, in respect of new work to inspect containers, regulators, and appliances connected to the installation and test the whole installation for patent defects. In the case of work comprising the alteration, extension or repair of an existing gas installation, the gasfitter must inspect containers, regulators and appliances connected to the part that has been altered, extended or repaired, and must test the whole installation for patent defects.

4. [61]

   Clause 10 requires the gasfitter “immediately after testing a gas installation following the completing of gas fitting work” (as required by cl 9) to furnish a certificate of inspection for the installation to either the owner, or a person having the control or management of the installation. In the case of a fixed gas installation, which the College’s installation was, the gas fitter is required to send a copy of the certificate to the usual supplier if the certificate indicates that the installation is patently defective. I interpolate, this would hardly be a necessary requirement if there was no prohibition on filling an as yet unconnected tank intend for use with an adjacent installation.

5. [62]

   Clause 11 deals with compliance plates which in my view have a central part to play in the overall scheme of the regulation. The person responsible for carrying out gasfitting work on a gas installation must detach the compliance plate from the installation before the work is carryied out and must attach a new compliance to the installation after the work is carried out, unless the certificate of inspection issued (under cl 10) indicates that the installation is patently defective. Clause 11 prescribes the physical attributes and the content of a compliance plate. As I have already pointed out by cl 11(2) a compliance plate must be attached to the installation in a conspicuous position adjacent to the control valve or other point by which the installation is designed to be connected to a gas container. If, after the work is carried out a gasfitter is satisfied that the gas installation, or any container, regulator or appliance connected to it is patently defective, the gasfitter must attach a defect notice to the installation, container, regulator or appliance as the case may be and if a patent defect cannot be isolated, remove any compliance plate from the installation (cl 12 DGR). One can see how cl 11 and 12 work together and the significance of a conspicuous compliance plate for the provisions of Div. 2 DGR to which I am about to turn.

6. [63]

   For present purposes it is enough to overlook cl 13 and 14 as they are inapplicable. I have already referred to in some detail and set out in full cl 16 applying to a gas supplier and cl 17 applying to the gasfitter connecting a gas container to the gas installation. It is also necessary to refer to cl 15 which proscribes a person from using a gas installation unless a compliance plate is attached to the installation. A person must not use an installation, container, regulator or appliance to which a defect notice is attached. Clause 15(3) is a similar exception to that found in cl 16(3) and cl 17(4). By cl 18 it is an offence to attach an unauthorised compliance plate to a gas installation. By cl 19 an inspector is authorised to remove a compliance plate if satisfied the installation, or any container, regulator or appliance connected to it “is not in safe working order”. It is an offence to remove a defect notice “until the relevant defect has been rectified or is found not to exist”.

7. [64]

   One can well appreciate the centrality of the compliance plate in the scheme of regulation, the absence of a compliance plate is itself a red flag prohibiting the use of, supply to, and connection of a gas container to a gas installation. It is an offence to attach a compliance plate other than as authorised by DGR. Using supplying or connecting a container to a gas installation in the presence of a defect notice is an entirely separate offence.

Breach of statutory duty

1. [65]

   As will become apparent when I analyse the liability of each of the defendants and Cohen, in some cases Mr Hossain for his claim and the various defendants for their cross-claim rely upon an asserted breach of individual provisions of DGR as founding a liability for the tort of breach of statutory duty, as opposed to statutory negligence as referred to in s 5A Civil Liability Act. In a general way the arguments proceed on the basis that the specific obligations imposed by individual provisions of the Regulation do not depend upon negligence so as to engage s 5A Civil Liability Act. Rather they turn on their specific terms.

2. [66]

   The question when a private right of action for a breach of a statutory provision arises was discussed by Dixon J (as the Chief Justice then was) in O’Connor v SP Bray Ltd (1936) 56 CLR 467 at 477. His Honour said:

3. [67]

   In 1981 in John Pfeiffer Pty Ltd v Canny (1981) 148 CLR 218 Mason J (as the Chief Justice then was) felt able to state the principle in more general terms by reference O’Connor (at 231):

4. [68]

   In Byrne v Australian Airlines Limited (1995) 185 CLR 410; [1995] HCA 24 at 424 Brennan CJ, Dawson, and Toohey JJ expressed the principle in the following terms:

5. [69]

   In McDonald (T/as B.E. McDonald Transport) v Girkaid Pty Ltd [2004] NSWCA 294; [2004] Aust. Torts Rep. 81 – 768, the Court of Appeal considered the question whether certain provisions of the Dangerous Goods Regulation 1978 (NSW) confer a civil cause of action for breach. The basal litigation concerned the consequences of a fire at a warehouse. The warehouse was so badly damaged by the fire that it had to be demolished to its concrete slab. The owners of the land sued one of two occupiers, claiming the fire had been caused by the spontaneous combustion of dangerous goods kept on the tenant’s part of the premises. Having referred to the authorities which I have mentioned, McColl JA (with whom Beazley JA (as the President then was) and Young CJ in Eq (as his Honour then was)) pointed at [174] that, “the question whether a statutory duty confers a correlative private right of action” also turns on whether “the statute imposes a duty to take a specific precautions” (O’Connor v S.P. Bray Ltd) or “measures for the safety of others” (John Pfeiffer Pty Ltd v Canny). Her Honour at [176] emphasised that the question of “whether a statute confers a private cause of action ultimately turns upon the terms of the legislation”. Legislation which merely “prescribes the end, but not the means” (at [177]) and “does not identify any specific precaution” or measure which the dfendant is to take for the safety of others is not the type of provision supporting the correlative private right of action for harm caused by its breach. Her Honour also said at [178]:

The liability of the College

1. [70]

   The College is Mr Hossain’s employer and the occupier of the school. It is sufficient to focus upon the relationship of employer and employee between the College and Mr Hossain. Mr Hossain does not rely upon the tort of breach of statutory duty against his employer (5FASOC). He is apparently content to bring his action in negligence.

2. [71]

   It is not in doubt that the College owes Mr Hossain a non-delegable duty to exercise reasonable care to avoid exposing him to unnecessary risks of injury: Czatyrko v Edith Cowan University [2005] HCA 14; 79 ALJR 839 at [12]. The duty extends to the provision of a safe place of work. In Cotter v Huddart Parker Ltd 42 SR (NSW) 33 at 37 Jordan CJ formulated the employer’s duty in respect of the safety of the place of work as a duty to make “the place of employment … as safe as the exercise of reasonable skill and care will permit.” Although reversed on appeal to the High Court in Huddart Parker Ltd v Cotter (1942) 66 CLR 624; [1942] HCA 34 on other grounds, the Chief Justices formulation of the duty was not called into question: Glass McHugh Douglas, The Liability of Employer’s, Second Edition (1979). His Honour clearly formulated this aspect of the employer’s duty as corresponding with the formulation of the duty owed to contractual entrants by McCardie J in MacLenan v Segar [1917] 2KB 325 at p 333.

3. [72]

   This formulation dovetails with the explanation of the non-delegable nature of the employer’s duty of care given Mason P in TNT v Christie (2003) 65 NSWLR 1; [2003] NSWCA 47 at [47] and [48]:

4. [73]

   It is to be borne in mind that TNT v Christie was a case concerned with the employer’s duty to provide safe plant and equipment. The formulation of the content of the duty to exercise reasonable care to provide safe premises in the terms expressed by Jordan CJ emphasises the non-delegable or personal nature of the duty.

5. [74]

   As Mason CJ emphasised (at [45]) by reference to Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 at 550 there are categories of case in which a duty to take reasonable care to avoid a foreseeable risk of injury will not be discharged by the employment of a qualified and ostensibly competent, independent contractor. This is because non-delegable duties are “of a special and “more stringent” kind”. Duties of this kind extend “to seeing that care is taken”.

6. [75]

   By the application of these authorities, it is sufficient to say that the obvious negligence of Enma in failing to either locate the second stage regulator, or vent it to the, outside of Building D provides a sufficient basis for a finding of negligence on the part of the College. As Mason P explained liability for breach of an employer’s duty can be imposed on the employer “regardless of personal fault” provided the damage was caused by a lack of reasonable care on the part of someone within the scope of the employer’s duty of care. Those “conditions” are satisfied in this case.

7. [76]

   I should also add that were this not correct, I would be inclined to hold that the College is in breach of cl 15 DGR in as much as it has used the gas installation when a compliance plate was not attached to the installation. I appreciate that the College is not a qualified gasfitter. However, as I have said the attachment and maintenance of compliance plates in a conspicuous place on a gas installation near the point of attachment of the installation to the gas container as a central requirement of DGR. This breach is pleaded as a particular of negligence at paragraph ([19] l) of the Fifth Further Amended Statement of Claim in these terms:

8. [77]

   The College argues that as it is not a qualified gasfitter, the knowledge of such an expert should not be imputed to it. But I think this is no answer to an employer’s obligation. The employer’s obligation is to maintain the safety of the premises not just to provide premises which are at the outset apparently safe. Although these premises were unsafe from the outset by reason of the patent defect in the gas installation constituted by the location of the second stage regulator.

9. [78]

   It was also argued that if the College is a person who uses the gas installation within the meaning of cl 15, so too is every employee who uses any appliance connected to the installation: see cl 33(1)(c) DGR. The College says that would be absurd and cl 15 cannot be read to require that outcome. It seems to me that employees do not utilise the gas installation as such even if it may be said that they from time to time used the appliances connected to it. Only the College as between it and its employees uses the gas installation itself.

10. [79]

    The College also argues that it is absolved from liability by the reasoning of the House of Lords in Davie v New Merton Board Mills [1959] AC 604, discussed by Mason P in TNT and Christie at [55] ff. Davie concerned an inherent latent defect in a tool called a drift used by being struck by a hammer. When struck a piece broke off because of its excessive hardness and entered the eye of the plaintiff who was using it. It was in the circumstances a dangerous tool. The latent defect arose from its negligent manufacture by reputable makers who had supplied it to a reputable firm of suppliers from whom the employer purchased it. The employer had a system of maintenance and inspection, but the defect was not susceptible to discovery by any reasonable inspection. The House of Lords held that the employer’s duty did not “extend to defects due to the want of skill or care on the part of anyone concerned in manufacture or sale in circumstances where the employer bought the plant from a reputable source” (TNT v Christie at [58]). Mason P held that the principle in Davie did not apply in TNT v Christie because the employer’s duty extended to negligence in the servicing and maintenance of the equipment. It is implicit that the defect was discoverable in the course of maintenance and delegation of the responsibility for maintenance to an independent contractor did not absolve the employer of legal responsibility “if it could be shown that the plaintiff employee’s injury was a result of negligence in regard to the maintenance and repair of the equipment” (TNT v Christie at [61]).

11. [80]

    In my judgment this case is quite different from Davie and it is quite different from TNT v Christie. The duty here is concerned with the safety of the premises occupied by the employer. Moreover, the “defect” which made the workplace unsafe was discoverable upon reasonable inspection even if only by a qualified gasfitter. The absence of the compliance plate and the position of the second stage regulator would have been obvious to anyone on any inspection who was familiar with safe practice in relation to gas installations. I am of the view that Davie does not assist the College and that it is in breach of its duty to exercise reasonable care to provide a safe place of work for Mr Hossain.

12. [81]

    The College had been in occupation for about two years before the explosion. There can be no doubt that on the one hand the negligence of Enma are imputed to it by its non-delegable duty, and on the other, its negligence in failing to maintain the premises were legal causes of Mr Hossain’s personal injury. It is unnecessary to analyse causation by reference to s 5D Civil Liability Act in a case of employer’s liability.

The legal liability of Binah and IAL

1. [82]

   As I have said IAL is sued under s 601 AG Corporations Act 2001 (Cth). That provision is in the following terms:

2. [83]

   Mr Hossain argues that Binah owed him a duty of care in accordance with the principles enunciated in Caltex Refiners (Qld) Pty Ltd v Stavar (2009) 75 NSWLR 649; [2009] NSWCA 258. Mr Hossain identifies the risk of harm as a risk of injury from the gas explosion if the gas installation was not constructed in accordance with DGR and applicable standards. Given the potential dangers associated with LPG if precautions are not taken, Mr Hossain argues for the purpose of s 5B Civil Liability Act that the risk of an explosion from accumulating gas was reasonably foreseeable and not insignificant. It is submitted that a reasonable person in the position of Binah would have taken the precautions of: (a) engaging a competent sub-contractor to construct the gas installation; and (b) ensuring that the gas reticulation system (gas installation) was certified by a competent gasfitter as compliant with DGR.

3. [84]

   It is submitted that the evidence shows that Enma was in fact incompetent. Reliance, in particular, is placed upon the location of the second stage regulator in the ceiling space above Mr Hossain’s storeroom, consideration that at least one of two other second stage regulators were identified as having been improperly installed by reason of the failure to vent to the atmosphere, and the failure of Enma to certify its work by providing Binah with the certificate of inspection as required and attaching the compliance plate on the installation in a conspicuous location near its connection with the gas tank. Reliance in particular was placed upon the opinions of the experts (401 – 403T) that installation of the offending second stage regulator demonstrated incompetence.

4. [85]

   IAL accepts that Binah was the principal contractor for the construction work at the College in 2007 and 2008. It accepts that it retained Enma as a specialist sub-contractor to perform gasfitting works.

5. [86]

   IAL tacitly accepts that the principal contractor on a construction site may owe a duty of care to future entrants to the completed works. IAL argues that its duty is discharged by the appointment of an apparently competent independent contractor: Leichardt Municipal Council v Montgomery (2007) 230 CLR 22 at [98]; Bevillesta Pty Ltd and Liberty International Insurance (2009) NSWCA 16 at [53]; Laresu Pty Ltd v Clark [2010] NSWCA 180 at [61].

6. [87]

   IAL argues that whatever hindsight demonstrates about Enma’s actual level of competence, there is no evidence that Binah knew or ought to have known that Enma was incompetent in gasfitting at the time the sub-contract was awarded. It has not been shown that the principal contractor should have been familiar with the relevant regulations or standards pertaining to gasfitting work and that the terms of the DGR imposed obligations on Enma and not on Binah. It had not been demonstrated that Binah ought to have realised that Enma had failed to certify its work by providing certificates of inspection at the completion of the gasfitting work and attaching the compliance plate to the installation near its connection with the gas tank.

7. [88]

   IAL argues that Binah’s duty was delegable. IAL submitted that the authorities make clear that there’s a high threshold to establish a non-delegable duty of care: Leighton Contractors Pty Ltd v Fox (2009) 240 CLR 1.

8. [89]

   IAL argues that the plaintiff bears the onus of proving on the balance of probabilities that the negligence of Binah cause the harm suffered in accordance with the provisions of s 5D Civil Liability Act. Like the College, it argues that the counter-factual sufficient to establish causation has not been established as the plaintiff cannot prove what would have happened had Binah queried the absence of compliance documentation and/or a compliance plate. It is submitted that it is not appropriate to hold a principal contractor legally responsible for the consequence of the negligence of a specialised sub-contractor: s 5D(1)(b) Civil Liability Act.

9. [90]

   In my judgment this case does not fall into the category of case considered in Leighton Contractors Pty Ltd v Fox and Stevens v Brodribb Sawmilling Company Pty Ltd (1986) 160 CLR 16 at [47] – [48]. Those cases were concerned with the duty owed by a principal contractor to independent contractors and the employees of the latter engaged in the construction or other work being carried out on site. The present case is different. It is concerned with the duty of a principal contractor, or a builder, to subsequent users of the building under construction. It is not concerned with economic loss but with personal injury. The duty is not as constrained as that discussed by the High Court in the cases to which I have referred. I accept, however, that generally in the absence of a non-delegable duty the exercise of reasonable care in the appointment of a competent sub-contractor, depending on the terms of the contract, effectively delegates the principal contractor’s duty of care. To put it another way, in the absence of a non-delegable duty, the appointment of an apparently competent contractor discharges the obligation of reasonable care.

10. [91]

    I also accept IAL’s argument that there was no evidence to show that as at the time of its engagement Enma was not competent. Its principal Mr Arab was a qualified gasfitter in accordance with the requirements of cl 7 DGR: see (Exhibit 3D2). The evidence is that Mr Arab held a licence as a gasfitter from 15 February 2002 until 8 February 2009. There is no other evidence to suggest that at the time the sub-contract was awarded he was not otherwise competent.

11. [92]

    I am of the view, however, that a reasonable principal contractor in the position of Binah undertaking construction work for a school including the construction of LPGas installations ought to have had a familiarity with the compliance requirements of DGR including the obligation of the gasfitter to provide the certificate of inspection immediately after testing following the completion of the gasfitting work in accordance with cl 10(1) DGR. For this purpose there is no doubt that at the completion of the work of installing the gas installation, Binah was the person having the control or management of the installation under cl 10(1)(b) DGR. Moreover, a principal contractor in the position of Binah ought to have been aware of the provisions of cl 11 and the requirement to attach a compliance plate to the installation after the work had been carried out, unless a certificate of inspection had been issued to Binah under cl 10 indicating that the installation is patently defective.

12. [93]

    Binah ought to have been aware that the omission of Enma to both provide the cl 10 certificate of inspection and attach the cl 11 compliance plate raised a question, a red flag, about whether the installation was free from patent defects. A reasonable principal contractor in the position of Binah would also have questioned, given Enma’s failure to comply with these requirements, whether Enma at that stage was a reasonably competent gasfitter.

13. [94]

    Given these matters, in my judgment a reasonable principal contractor in the position of Binah, especially given the intended use of the premises as a school, would have engaged an independent contractor to test and inspect the installation including the associated fittings to ascertain whether the installation was compliant with the requirements of DGR and if not, to rectify any patent defects like the second stage regulator which had not been located or at least vented to the atmosphere.

14. [95]

    In expressing these conclusions, I have approached the matter having regard to the general principles in s 5B Civil Liability Act. There is no doubt, informed by the provisions of DGR that the use of LPGas operations involves potential danger unless the precautions laid down in the DGR are observed. The risk of a gas leak in a non-compliant installation was, viewed prospectively, foreseeable and not insignificant. The magnitude of the risk was great when one has regard to the potentially catastrophic outcome if it materialised, even if the chance of the risk materialising was not great. In these circumstances, a reasonable person in Binah’s position would have taken the precaution of having the installation tested and inspected independently and causing any patent defects uncovered in that process to be rectified.

15. [96]

    Looking at the s 5B(2) considerations, as I have said, the probability that harm would occur if care was not taken favoured the taking of the precaution. The risk of materialisation may not have been great, but the consequences foreseeably would have been had the risk materialised. Had the risk materialised, the resulting harm could have been very serious. And, in the overall scheme of the project, the burden of taking precautions to avoid the risk of harm would not have been great in financial terms. Although there is significant social utility in the provision of schools and in the performance of construction work generally, these matters are not sufficient to negative the other factors which lead me to find that a reasonable person would have taken those precautions which I have identified above..

16. [97]

    I have already referred to the principle expressed in Grant v Sun Shipping Co. Ltd (at [8] above). That decision was cited with approval by McHugh J in Bennett v Minister of Community Welfare (1992) 176 CLR 409. Nothing in s 5D dilutes the authority of that decision. Section 5D(1)(a) speaks of negligence as “a necessary condition of the occurrence of the harm”. The indefinite article qualifying “necessary” has been deliberately chosen to connote that the idea, referred to in Bennett, that for the purpose of the but for test the tortfeasor’s negligence need only be one of more than one necessary conditions.

17. [98]

    There is no reason to suppose that Binah would simply have asked Enma to provide the necessary certificate of inspection and attach the compliance plate. The circumstances I have described would have alerted a reasonable person in the position of Binah to serious questions about Enma’s competence. Given the nature of the principal contractor’s other obligations and responsibilities, an independent contractor would have been asked to perform the omitted work on the balance of probabilities. Or at least in the absence of evidence from Mr Hafza, I would not be prepared to infer that Enma would have simply been invited to return.

18. [99]

    In my judgment the negligence of Binah I have identified was a necessary condition of the harm suffered by Mr Hossain. The explosion took place one day short of exactly two years after the supply of the gas by Elgas. Had the principal contractor taken the reasonable precautions I have referred to, the disaster would have been averted.

19. [100]

    There is no reason why the scope of Binah’s liability should not extend to the personal injury caused by its negligence. Binah as principal contractor was very much in control of the building works. The evidence indicates, for example that it vetted, processed and ultimately approved all progress payments. Persons in the position of Mr Hossain, pupils, teachers and other workers at the school were vulnerable in the sense that they were not in a position to take precautions for their own safety in relation to the risk of a gas explosion. In my judgment Binah is legally liable to Mr Hossain and under s 601 AG IAL must meet that liability.

20. [101]

    Were I wrong in those conclusions, in my view the duty of Binah in these circumstances is non-delegable. I appreciate the force of IAL’s submission that there is a high threshold to establish a non-delegable duty. And I appreciate that the decision of the High Court in Leichardt Municipal Council v Montgomery evinces what might be regarded as a strong reluctance to extend the established categories of non-delegable duties. If the door has not been slammed closed, it is barely ajar and guarded by a vigilant, juristic sentinel. A category of non-delegable duty not disapproved of in Leichardt Municipal Council v Montgomery was that established by the unanimous decision of Mason CJ, Deane, Dawson, Toohey and Gaudron JJ in Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520. Their Honours said at 550:

21. [102]

    Burnie Port Authority was a case concerned with a liability of an occupier for the harm caused by the escape from its land of a dangerous substance, in that case, fire. The ratio of the decision may be taken to be the following passage at pp 556 – 557. Having explained why the former rule in Rylands v Fletcher (1868), LR 3HL 330 should be “absorbed by the principles of ordinary negligence”, their Honours continued at p 556:

22. [103]

    There is no doubt that Binah has taken advantage of its control of the premises to introduce a dangerous substance namely LPGas and to carry on a dangerous activity in terms of facilitating the use of the gas installation by the College. As their Honour’s said at p 554:

23. [104]

    Given the risk involved in the introduction of a fixed LPG installation, there is no injustice in imposing upon the principle contractor, the more stringent duty of seeing that reasonable care is taken. In that regard the consequences of Enma’s obvious negligence are sheeted home as legal liability in Binah which IAL must assume under the terms of the federal statute.

The liability of Five Star

1. [105]

   Mr Hossain says that Five Star contravened clauses 9, 10 and 11 DGR by:

2. [106]

   Five Star’s quote to the College (Exhibit C, p 133) provides an itemised list of the works that Five Star were engaged to undertake. The work included supplying sewerage and sanitary drains, supplying “domestic water as per the plan” supplying and installing a “fire hydrant & landing valves” and the supply of gasfitting works for stage 2 of the College development. It may be important to record that the description of the gasfitting work in the quote is, “Supply and & install Gas service from gas tank to HWH as per plan.” The total value of the quote was $115,500. The quote included a sum for re-locating Elgas’s gas tank, but all parties accept that work was never performed. Only the gasfitting work is impugned.

Issues

1. [107]

   Mr Hossain’s claim against Five Star is framed in negligence and breach of statutory duty for contravention of cl 9 DGR. The failure to comply cl 11 is relied on as a particular of negligence.

Case against Five Star

1. [108]

   A significant factual issue in the case against Five Star concerns whether Five Star’s gasfitting works were completed when it finished work on the site in November 2009. This issue arises because of the description of its gasfitting work in its quote which implies the connection of the installation to appliances, if “HWH” means hot water heaters. There is no real dispute that when Five Star finished in November 2009, as I have said above, it had run the installation to the new building site, attached a valve and capped the piping as the building works had not progressed sufficiently to continue the installation into the building. As the evidence quoted below shows it had also charged and been paid for the full amounted quoted. The issue is significant because “completion of gasfitting work” is a factor which triggers the cl 9 DGR obligations.

2. [109]

   Clause 9 is in the following terms (my emphasis):

3. [110]

   As is apparent cl 9 imposes obligations upon gasfitters who install new work or alter, extend or repair existing gas installations immediately after the completion of gasfitting work on a gas installation. As I have indicated these terms are defined in the DGR dictionary: see [52]; [59]-[64] above.

4. [111]

   The completion of gasfitting work on an existing installation creates an obligation to inspect such part of the installation as has been altered, extended or repaired which extends to inspection of the containers, regulators and appliances connected to such part of the existing installation as has been altered, extended or repaired. As expressed in cl 9(b)(ii) the gasfitter must inspect all gas container, gas regulators and gas appliances connected to such part of the installation as has been altered, extended or repaired. A claim for breach of cl 9(b)(iii) was not pressed (307.45T).

More of Mr Afiouni’s evidence

1. [112]

   Mr Afiouni was the only individual called to give evidence who actually worked on the installation. It was submitted he should be considered “an honest and impressive witness” who certainly “explained his understanding of the regulations or rules, as he described them…and explained in some detail why he did not consider he was obliged to do the things that were put to him.” It was submitted “that his evidence should be given considerable weight” (written submissions [10]). I found him to be a forthright witness who certainly engaged with the process of giving evidence. I found him to be sincere in his evidence. As I will demonstrate his evidence at times betrayed a lack of understanding of his obligations under DGR.

2. [113]

   Mr Afiouni gave evidence that he had 16 years’ experience working with LPGas as at the relevant time. Regarding the nature of the arrangement with the College Mr Afiouni said that during the engagement he worked closely with Mr Wahib Shanferly, who appears to be his business partner. It appears Mr Shanferly prepared Five Star’s July 6 2009 quote (Exhibit 6, p 134). Mr Afiouni said in evidence that there was a general division of duties where Mr Shanferly would do most of the “quoting work” and Mr Afiouni would do most of the “actual work” (125.20T).

Relevant Gasfitting work completed by 30 November 2009

1. [114]

   It is uncontroversial that the gas installation works I have described were undertaken at the College by Five Star by 30 November 2009.

2. [115]

   Regarding the actual gasfitting work completed, Mr Afiouni agreed that it involved, “digging a line, [and] laying pipe work from the second stage buildings to the tank” (131.05T). Mr Afiouni said that after discussion with Mr Hafza the plan was “to run a line to the existing (Elgas) tank, put in a T connector below the (existing first stage) regulator and then run gas through to the second stage” of the construction of the school (131.35T). Mr Afiouni said that by November 2009, the gas was running back from where it was originally installed.

3. [116]

   The schedule of progress payments made to Five Star (p 135 of Exhibit C) shows that by 30 November 2009 the full amount of $115,500 had been paid to Five Star. This document was shown to Mr Afiouni during cross-examination on behalf of Elgas:

4. [117]

   Mr Afiouni agreed that he could access Elgas’s tank either during the week or on the weekend (109.45T) to perform his work. And he agreed that this could have been done even before the job had started when it was being priced (109.45T).

Five Star’s general duty of care

1. [118]

   Voli v Inglewood Shire Council (1964)110 CLR 74, establishes that a building professional or tradesman who undertakes work on the construction of a building will owe a duty of care to future users of the building to exercise reasonable care to eliminate unnecessary risks of personal injury arising from the work they perform. This is the duty owed by Five Star to Mr Hossain. The following extract from Voli at (p 85) has application (Windeyer J, Dixon CJ and Owen J agreeing):

Object of regulatory framework informs Five Star’s duty

1. [119]

   By undertaking work for the College, I am satisfied the duty of Five Star Plumbing extended to include a class of people including Mr Hossain lawfully using the school who were vulnerable to risks arising out of non-compliance with DGR in the sense they could not themselves take precautions to protect themselves against such risks. Had they turned their minds to such matters they would have expected gasfitting work to have been performed competently, safely and in accordance with DGR. Five Star owed to Mr Hossain a standard of care consistent with that of a reasonably competent gasfitter familiar with the requirements of DGR. Mr Hossain submitted that the risk of serious danger was reasonably foreseeable and not insignificant.

Case in negligence

1. [120]

   As refined by the trial process Mr Hossain’s case against Five Star was that he should have looked for the compliance plate required by cl 11 before starting any work on the installation even if only for the purpose of detaching it. He would then have noticed its absence which should have operated as a red flag suggesting the gas installation on which he was required to work may not be compliant in the sense of being free from patent defects. He should have drawn the matter to Mr Hafza’s attention. Although Five Star’s contract seemed to be with the school rather than Binah, from Mr Afiouni’s evidence ir is apparent he dealt with Mr Hafza in the performance of his work. Mr Hafza would probably have requested that Mr Afiouni undertake such testing and inspection as was required to either establish compliance or identify patent defect. In the case of the latter Mr Hafza would have authorised its rectification. After the explosion he engaged Mr Afiouni to inspect the whole installation including parts not affected by the blast.

2. [121]

   The experts in their concurrent evidence all agreed that it simply was not industry practice or standard for a reasonably competent gasfitter to commence work without detaching a compliance plate and without issuing a certificate of inspection for works completed. This was said to have amounted most squarely to a breach of Five Star’s Duty informed by cl 11 and the objects of the regulatory framework.

3. [122]

   Mr Hossain also argued, effectively in the alternative, that when Five Star’s work concluded in November 2009, they had completed gasfitting work triggering obligations under cl 9, 10 and 11. As its work was on an existing installation cl 9(2) was engaged and Five Star, under cl 9(b)(ii), was required to inspect all of the components and fixtures “downstream” from its work near Elgas’s tank as everything including the second stage regulator was connected to the part of the installation they had altered or extended.

Mr Afiouni’s evidence about compliance plates

1. [123]

   Mr Afiouni said that he generally worked on the basis of his understanding that if a filled gas-tank was present than it necessarily followed that a certificate of inspection must have been issued and a compliance plate attached. This was why he did not look for the compliance plate before commencing work. Mr Afiouni spoke about his understanding of this issue:

2. [124]

   Mr Afiouni was asked if he would have been “totally unconcerned” if he had gone and looked for a compliance plate attached to the installation at the point closest to the tank, and it wasn’t there. He replied:

3. [125]

   In respect of the compliance plate, Mr Afiouni acknowledged that there was not a compliance plate on the gas works before he started on it and that he did not put a compliance plate on until after being requested to do so by WorkCover on 17 June 2010. At (142.35T):

4. [126]

   Mr Afiouni conceded that he never knew it was a requirement to detach existing compliance plates under cl 11 before commencing work on a gas installation (139.05T). He said that he would find nothing alarming in the absence of a compliance plate (140.35T). Mr Afiouni did admit that he would be alarmed if he saw that the second regulator was in a ceiling space venting into that ceiling space, amongst other things this would be so because “LPG is heavier than air” (141.35T). Mr Afiouni stated that in training to become a gasfitting professional he was not aware of, nor had he become familiar with the DGR (138.40T).

5. [127]

   Mr Afiouni says that by November 2009 he had finished the quoted gas work subject to connecting the appliances (148.45T), for which he was going to charge extra money for (149.15T). It was the understanding of Mr Afiouni that after he had finished connecting the line which he had constructed that gas would be running from the tank into both the older line and the new line (150.15T). Mr Afiouni acknowledged that the new line he was constructing was going to be connected to the old line and that he did not look for any compliance plates associated with the existing line (153.40T). It is apparent he did not issue a certificate of inspection or attach a compliance plate in November 2009.

Finding of negligence

1. [128]

   Contrary to my reading of DGR, Mr Afiouni was not of the view that constructing the new line, constituted an alteration or extension of the existing gas installation. (157.25T) For the purposes of cl 9, 10 and 11 of the regulations it appears that several obligations arose which were not met by Mr Afiouni immediately after finishing his gasfitting work on the existing gas installation. Despite his understanding I find that on the balance of probabilities that he had indeed completed gasfitting work by 30 November 2009. Although he had not connected the appliances to the altered and extended installation as originally contemplated, he had taken the work as far as he could and sealed it. He had charged the full price quoted and he did not intend to return to the job for some time. In the event he did return until he was called back after the explosion. It is not within the contemplation of DGR that the work can be left in abeyance for some months without the requirements of cll 9, 10, and 11 being observed. These required testing, inspection, the provision of a certificate of inspection and, if appropriate the attachment of a compliance plate.

2. [129]

   This work consisted of altering and extending an existing gas installation. He was thus required to test and inspect the part of the installation that he altered and extended, which I accept he did. But compliance with cl 9(b)(ii) required him to inspect the connected regulators, appliances and containers, which he did not.

3. [130]

   The observation of the requirement for the gasfitter to inspect the gas installation under cl 9(b)(ii) enlivens a subsequent obligation to provide a certificate of inspection under cl 10 to the owner of the installation or the person in control of the site. At this time this was probably the College on both counts rather than Binah. Assuming the inspection demonstrated the installation was free from patent defects, an obligation to provide a compliance plate under cl 11, followed. Of course had he carried out the required inspection after completion of his work he would have detected the patent defect presented by the second stage regulator in the roof space. In that his certificate of inspection would have identified the patent defect an additional copy would have been provided to Elgas. In this event he would not have been authorised to attach a compliance plate under cl 11 lest a subsequent gasfitter, user or supplier be misled: cf cll 12(1)(b) and 18. Clause 12 would require an attachment of a defect notice to the regulator. Any existing compliance plate must be removed, unless the defective regulator could be isolated from the installation. I think it implicit in the evidence that this could not be done.

4. [131]

   In his evidence Mr Afiouni stated that in training to become a gasfitting professional he was not aware of, nor had he become familiar with the DGR (138.40T). He was also unaware that before he commenced gasfitting work he was required to remove existing compliance plates (138.45T).

5. [132]

   Had Five Star Plumbing complied with the regulations inherent to their duty, it seems inevitable that the improper manner in which the gas installation was flued would have been exposed due amongst other things to the absence of a compliance plate and the non-compliant and unsafe way in which it was vented into the ceiling. Consequently the harm caused to Mr Hossain would not have occurred and the clauses of the regulation would have achieved their purpose to prevent and detect risks of danger associated with the install and supply of Gas.

6. [133]

   I accept Mr Hossain’s argument as to causation under s 5D Civil Liability Act. Had Five Star complied with DGR he would have discovered the defect and Mr Hafza would have authorised its rectification.

Breach of Five Star’s statutory duty

1. [134]

   Breach of statutory duty is pursued against Five Star only in respect of cl 9(b)(i) and(ii). Both of these sub-clauses primarily stipulate a safety precaution that obliges a duty to inspect certain components of the gas installation and its connected parts.

2. [135]

   I have already made a finding of fact that Five Star had completed its gasfitting work by 30 November 2009 so much is apparent based upon both the schedule of progress payments at (Exhibit C, p 135) and the evidence of Mr Afiouni who confirmed during cross-examination with Mr Morris that to the best of his recollection the works had been completed (136.10T). As I have pointed out this finding triggers the obligations under cl 9. I have found for the purpose of the law of negligence that Five Star complied with cl 9(b)(i) but not cl 9(b)(ii).

3. [136]

   Should there be any remaining question about whether the gasfitting work had been completed it is in my view resolved by reference to the following evidence. Mr Afiouni reaffirmed my view of the evidence during additional cross-examination from Mr Black regarding the completion of works issue. Mr Afiouni was steadfast that the works quoted to the College were completed by November 2009 and any works thereafter were going to require a new price (148.40T):

4. [137]

   Mr Afiouni gave evidence (149.20T) concerning the nature of the gasfitting work he had undertaken and how precisely the gas installation he had quoted for, worked on and altered, connected to the various components of the existing installation, a consideration that is critical in light of cl 9(b)(ii) which imposes the statutory duty to inspect all appliances, containers and regulators connected to the installation that has been altered.

5. [138]

   I have already accepted that the gasfitting work altering and extending the existing installation completed in November gave rise to an obligation under cl 9(b)(ii) to inspect the whole existing installation “downstream” from where Five Star cut into the existing installation near the tank. Given the relative complexity of the system of connections, pipes and associated fittings it is convenient to set out the exchange from the transcript indicating how the componentry was connected within the installation that was eventually altered by Mr Afiouni (149.20T):

6. [139]

   From a plain reading of the above exchange between Mr Black and Mr Afiouni it is clear that;

   1. (1)

      There was a control valve at the top of the tank, used to turn the gas on and off from the tank.

   2. (2)

      There was a line that ran out of the tank and into a first stage regulator.

   3. (3)

      The same line continued on the other side of the regulator down to the ground.

   4. (4)

      Gas was fed into the line that ultimately ended up feeding into Building D.

   5. (5)

      When Mr Afiouni worked on the line he joined onto the line after the first stage regulator.

   6. (6)

      Mr Afiouni undertook work on the line after the first stage regulator, this is where he put in the T connection.

   7. (7)

      Mr Afiouni conceded that from the point of the T connection the gas could run either on the line that went throughout the College or it could go along the line that had been constructed.

   8. (8)

      The line that was constructed and added to the T connection also had another control valve that was installed at the furthest point away from the tank.

   9. (9)

      The line that was altered connects to the second stage regulator and goes to the next appliance (155.20T):

7. [140]

   Mr Afiouni agreed that it was his understanding that after he had finished connecting the line that was constructed, that the gas could both run from the tank into the older line and the new line, so much is apparent in the below exchange (150.20T):

8. [141]

   The evidence of Mr Afiouni indicates that indeed he had connected to an existing gas installation that ran underground and connected to the second stage regulator and then ran to the appliance as he states (155.20T):

9. [142]

   Regarding the extent of his obligations in relation to the new and existing line Mr Afiouni gave evidence accepting the view that his only obligation at the time the work was completed would have occurred if he altered the line after the second stage regulator. Mr Afiouni made no mention of a duty to inspect nor a plan to inspect any container, regulator or appliance connected to the altered line that formed part of the gas installation (155.30T):

10. [143]

    Mr Afiouni rejected the proposition put to him by Mr Black that he was obliged to inspect the second stage regulators attached to the existing line at the time he carried out the gasfitting work (156.45T):

Breach

1. [144]

   To the extent that Mr Afiouni undertook work that altered an existing gas installation, it must be found under cl 9(b)(ii) that he was under a statutory duty to inspect all containers, regulators and appliances connected to the installation he had worked on, however Mr Afiouni denied he was under any obligation to inspect any of these components whatsoever after completing his gasfitting work: (156.45T). Failing to inspect under cl 9(b)(ii) is a breach of DGR. I accept that cl 9(b)(ii) is concerned with the safety of persons in proximity to gas installations and specifies a particular precaution which supports an interpretation giving rise to a correlative private right of action for the benefit of those within the ambit of its protection including Mr Hossain.

2. [145]

   I accept the submission of Mr Hossain that if Five Star had inspected the existing installation as required, the second stage regulator responsible for the discharge of gas which led to the explosion would have been detected. And the likelihood is that either the regulator would have been rectified, or the system defected and not used until rectified, and in either case the explosion would not have occurred on the balance of probabilities.

3. [146]

   At different times it has been submitted that the second stage regulator responsible for the explosion was inaccessible because it was in a ceiling space. I am not satisfied that the ceiling space was in fact inaccessible. The evidence about that is sparse. The only direct evidence is that under cross-examination by Five Star of Inspector Groll she agreed that so far as she could determine there was no access point like a manhole cover through which anyone could have climbed into the ceiling (71.10T). However, it emerged in cross-examination by Elgas that as a result of the explosion, “the ceiling had completely fallen down, particularly in that storeroom area (76.30T). There is simply no evidence to suggest that there was no manhole through which entry could be gained to the ceiling space to inspect and maintain services located there. There was no reason to suppose that, as is common in commercial buildings, that the ceiling panels were not removable to provide access to services.

4. [147]

   As such Five Star plumbing are liable for the harm suffered to Mr Hossain under a statutory breach of cl 9(b)(ii), this gives rise to a private right of action.

The liability of Elgas

1. [148]

   The plaintiff sues Elgas in negligence and for breach of statutory duty. The latter duty is the duty imposed by cl 16 DGR. Mr Hossain argues that Elgas owed a duty to the plaintiff to take reasonable care to ensure that the gas installation to which it supplied gas was one that was reasonably safe for persons who were lawfully on the grounds of the College. The risk of harm is said to be that if the gas installation was not appropriately constructed, gas might escape and explode causing injury. It is submitted that the risk was foreseeable and not insignificant for the purpose of s 5B Civil Liability Act. Mr Hossain argues that Elgas should have taken the precaution of ensuring that the gas installation was certified as compliant with the relevant standards and DGR before filling the tank. In making this submission, Mr Hossain says that the reasonable precautions are informed by the regulatory framework provided by DGR. As there was no compliance plate affixed to the gas installation when gas was supplied on 11 February 2008, Elgas should have refused to supply the gas until it received confirmation in the form of a Certificate of Inspection from a reputable qualified gasfitter and the required compliance plate was attached to the gas installation near its connection with the tank.

2. [149]

   I have set out the terms of cl 16 DGR above, at [21]. And I have found that the gas tank was connected to the gas installation, the gasfitting works had been completed, and that the supply was not covered by the exception in cl 16(3).

3. [150]

   I have set out the legal principles, the application of which will determine whether breach of a regulation will give rise to a correlative civil right of action at [65] – [69] above.

4. [151]

   I have dealt in some detail already with Elgas’s submissions as to the facts that should be found and I have with respect rejected them. Most of Elgas’s forensic effort was directed to fighting the case on those factual grounds. It seemed to accept in submissions that it had a duty of care which did not extend beyond the delivery of the gas tank and the supply of gas to the tank. Presumably this related to the careful performance of that work and that work only. It disputed that a breach of cl 16 DGR, even if established, confers a correlative private cause of action upon Mr Hossain.

5. [152]

   Assuming it had been negligent or in breach of statutory duty, Elgas argued that its negligence was not a necessary condition of the harm suffered by Mr Hossain for the purpose of s 5D Civil Liability Act. Moreover, given what it characterised as the intervening negligence of Five Star it submitted that there was a novus actus interveniens severing the chain of causation between its breach, if any, and the harm suffered by Mr Hossain. Accordingly, the scope of its liability should not extend to the harm suffered.

6. [153]

   Reference was made to Adeels Palace, in particular at [48] – [57], to support Elgas’s arguments on causation. Emphasis was laid on the statement at [50] to the effect that recognition that changing any of the circumstances in which harm occurs might have made a difference does not prove factual causation. It is necessary that causation be proved affirmatively on the balance of probabilities by evidence actually accepted by the Court.

7. [154]

   In Laundess v Laundess (1994) 20 MVR 156; (1994) Aust Torts Reports 81-316 Mahoney JA dealt with the circumstances in which the law may impute a general duty of care to the vendor of goods. Mahoney JA said (at p 160):

8. [155]

   In the case at hand, it is well accepted gas is a potentially dangerous substance if not handled with care and in accordance with the requirements of DGR. Both the existence of the duty and its content are informed in my opinion by the DGR and in particular cl 16 which imposes a particular obligation on the supplier of gas. The elusive something more, in this particular case is the absence of the compliance plate. As I have said in my previous analysis of DGR this is a central requirement of the scheme of regulation. Each of the participants in the scheme needs objective evidence that the gas installation in which the LPG is to be introduced is compliant and in that sense free of patent defects.

9. [156]

   In my opinion the absence of the compliance plate was the additional factor which enlivened a duty of care in relation to the supply of gas to the gas tank connected to the gas installation at the College. Obviously introducing gas into a gas installation affected by patent defect involves a foreseeable risk of serious harm which is not insignificant and which a reasonable gas supplier would take precautions against. The relevant precautions viewed prospectively are to refuse to supply the gas until receiving a certificate of inspection from a qualified gasfitter certifying that the installation is free of defect, and satisfying itself that a compliance plate has been attached to the installation in a conspicuous position near the connection with the gas tank confirming these matters.

10. [157]

    In my opinion, Elgas was subject to a duty of reasonable care having the content I described and breached that duty by supplying 2138 kl of LPG to the gas tank connected to the school’s installation on 11 February 2008.

11. [158]

    In these circumstances, it is probably unnecessary to consider separately the question of whether cl 16 gives rise to a correlative civil cause of action. For reasons similar to those addressed when dealing with cl 9 in respect of Five Stars liability, I am of the view that a breach of cl 16 DGR does give rise to a correlative private cause of action.

12. [159]

    Clause 16 is a provision which prescribes a specific precaution for the safety of others in a matter where the supplier of gas is, as I have explained, under the general law of negligence bound to exercise due care. There is nothing in the nature of cl 16 or in the scope of DGR from which a contrary intention appears. Clause 16 defines specifically what must be done in furtherance of the general duty to protect the safety of those affected by the operations of Elgas supplying gas. Unless there is a compliance plate signifying that the gas installation is free of patent defect, Elgas must not supply its gas tank connected to the installation with gas.

13. [160]

    There is no doubt that the provisions of DGR and cl 16 in particular for present purposes impose an obligation for the protection or benefit of persons who may occupy or enter the premises, serviced by a gas installation, supplied by the gas provided by the supplier. The duty may extend to members of the public likely to be in close physical proximity to the premises served by the installation should an explosion occur. In my judgment, as a matter of construction, a breach of cl 16, gives rise to a correlative private cause of action sounding in damages.

14. [161]

    I turn then to the question of causation. Both negligence and breach of statutory duty are torts where damage is of the gist. Mr Hossain cannot succeed on either count unless he proves on the balance of probabilities that his personal injuries were caused by the negligence of Elgas.

15. [162]

    Given my earlier analysis, so far as the law of negligence is concerned questions of causation are governed by s 5D and 5E of the Civil Liability Act. If I am correct in my opinion that in the present case a breach of cl 16 is not statutory negligence caught by s 5A of the Civil Liability Act then questions of causation in the case of breach of statutory duty are covered by general law considerations which are not identical to the statute. However, in the present circumstances I doubt there is any practical difference and the questions can be treated together for present purposes.

16. [163]

    It may be important to bear in mind that questions of causation unlike questions of foreseeability are evaluated in retrospect. It is necessary for the Court to determine what happened and why. I am satisfied on the balance of probabilities that the breach by Elgas was a necessary condition of, and materially contributed to, the harm suffered by Mr Hossain. Had Elgas refused the supply of the gas in the absence of a compliance plate and informed the College - perhaps Mr Hafza or someone in his position - why it would not supply gas until it received a certificate of inspection certifying that the installation was free of patent defects and could see for itself that a compliance plate had been attached in accordance with cl 11 DGR, I am satisfied, as I have already held in relation to the liability of Binah, and for the reasons I gave there, that Mr Hafza would have organised an independent gasfitter to carry out the testing and inspection that Enma had apparently failed to carry out. This process would have uncovered the patent defect represented by the negligent fitting of the second stage regulator in a confined space, not vented to the atmosphere, which would have been readily remedied. A Certificate of Inspection would have been provided. The compliance plate attached, and the gas supplied. In my judgment on the balance of probabilities, Mr Hossain’s injuries would have been averted.

17. [164]

    Given the interrelated and interdependent nature of the provisions of the DGR informing both the law of negligence and, in the case of cl 16, giving rise to an action for breach of statutory duty, I am satisfied that the harm suffered by Mr Hossain is well within the scope of the duty in negligence and the statutory duty that Elgas owed him.

18. [165]

    I am not satisfied that Five Star’s negligence constitutes a novus actus interveniens severing the chain of causation between the negligence or breach of statutory duty of Elgas and the harm suffered by Mr Hossain. I am not satisfied that the negligence of Five Star puts the harm suffered by Mr Hossain beyond the scope of Elgas’s liability.

19. [166]

    I have already referred more than once to the principle in Grant v Sun Shipping approved by McHugh J in Bennett v Minister of Community Welfare. In the latter case his Honour said at p 429:

The legal liability of Cohen

1. [167]

   As I have pointed out already, Cohen’s role in the matter was that of principal certifying authority under the provisions of the EPA for at least the first stage of the construction of the College, which included the erection of Building D. It remains in the proceedings in its capacity as the third cross defendant to the College’s Amended Statement of First Cross Claim. That document picks up by incorporation and pleads against Cohen the averments made by the plaintiff in his Second Further Amended Statement of Claim. I repeat that the plaintiff no longer presses a claim against Cohen nor does any other defendant by way of cross-claim.

2. [168]

   Cohen was originally sued as the Fifth Defendant. The averments made against Cohen in the Second Further Amended Statement of Claim are found at paragraphs 7, 8 and 22 – 27. The sole cause of action relied upon is in negligence and the particulars of negligence appear at the foot of paragraph 27.

3. [169]

   From this pleading, the case against Cohen is that it was a corporation which provided professional certification services to the building industry and that at all material times it was responsible for inspecting the works performed by Binah and Enma and certifying that those works complied with the relevant building and Australian standards and were constructed in accordance with good and safe building practices and had been carried out in a workman-like manner.

4. [170]

   It is said that the certification works, presumably of Cohen, were undertaken prior to the commissioning of the premises for the use as school in 2008. As things have transpired, it erroneously avers that Binah and Enma certified the LPG installation as compliant, and that Cohen certified the premises as complying with all relevant standards when a reasonable inspection would have disclosed that the LPGas regulators in three locations were incorrectly installed and did not comply with applicable Australian standards. It is also asserted that the incorrect installation of the second stage regulators posed a significant risk of harm to persons on the school premises including students, employees and visiting members of the public. It is asserted that a reasonable principal certifying authority “would have checked the LPGas tank was correctly installed and could be operated safely”. I interpolate immediately there is no issue about the safety of the gas tank, per se.

5. [171]

   The particulars of negligence include allegations of the failure to undertake a proper inspection of the LPGas system, failing to identify that the regulators were installed in confined spaces, failing to ascertain that the regulators were not adequately ventilated and “failing to require evidence of certification of the correct installation of gas regulators and the LPG gas system from a qualified gasfitter or plumber”.

6. [172]

   In its defence Cohen denies the allegations set out in paragraph 22 to 27 of the Second Further Amended Statement of Claim.

7. [173]

   But also pleads the following:

8. [174]

   When I referred to Cohen’s role at [30], [39] and [40] above I also referred to the provisions of the EPA legislation to which I was taken by the parties which govern the work to be performed by a principal certifying authority.

9. [175]

   The only evidence dealing directly with Cohen’s involvement in the construction project is pages 1 to 7A of (Exhibit 1D1). Mr Jones, the actual certifier involved, did not give evidence. And Cohen did not otherwise go into evidence. In addition to the Final Occupation Certificate to which I have made reference above, the College tendered the Construction Certificate showing Crescent Investments as the owner and Binah as the builder. Binah’s building licence number is set out. The value of the work was said to be $1.5m. A number of attachments are referred to but not tendered. It is not clear that the plan for hydraulic services including gas services prepared by Abacus Engineering Pty Ltd (Exhibit 3D1) was attached.

10. [176]

    I repeat that Cohen carried out a preliminary final inspection on 16 January 2008 and its Final Occupation Certificate Completion Inspection on 24 January 2008. In his report, Mr Jones stated that he’d made the various inspections listed and found the construction to be satisfactory and the development was completed in accordance with the approved plans, specifications and council’s development consent conditions. The Final Occupation Certificate certifies, inter alia, “the building is suitable for occupation or use in accordance with its classification under the Building Code of Australia”. I have not received any evidence about the Building Code of Australia and whether, in particular, it makes provision in relation to LPG installations. From an invoice dated 23 May 2007, (Exhibit 1D1 p 5), it is apparent that Cohen’s contract was with Crescent rather than Binah, as is required by the statute. For convenience I repeat that although Cohen had received certifications from Enma relating to general plumbing and drainage and fire services, the Certificate of Inspection required to be issued under cl 10 DGR are conspicuous by their absence.

11. [177]

    It is unknown whether Cohen had a written retainer with Crescent, but if so, it is not in evidence. In contending that Cohen owed Mr Hossain a duty to exercise reasonable care in the performance of its statutory function to avoid unnecessary risk of personal injury to future entrants to the building, the College laid particular emphasis on the provisions of s 109H(5)(c). That provision is in the following terms:

12. [178]

    It will be recalled that by dint of s 109M, “a person must not commence occupation or use of the whole or any part of a new building … unless an occupation certificate has been issued in relation to the building … or part.”

13. [179]

    The College argued that the s 109H(5)(c) obligation was mandatory. It did not matter that Cohen did not have expertise in gas fitting works because private certifiers owed duties to conduct adequate checks with respect to a whole series of services in which they have no expertise. Reference was made to the attachments to the construction certificate and the final occupation certificate covering a wide area of building professions and trades. It was still necessary for the certifier to consider and check those matters before issuing the relevant certificate.

14. [180]

    Cohen denies it has a duty of care that extends to exercising reasonable care to avoid the risk of injury by gas explosion. It relies upon in particular ss 5D, 5O and 5P Civil Liability Act. There was no pleading of any specific defence or partial immunity which may arise under the provisions of Part 5 Civil Liability Act. Section 5O relates to the so-called modified-Bolam test of liability. However, there is no evidence at all from any professional private certifier of “widely accepted” competent professional practice relating to the role of the certifier in confirming compliance with DGR, where applicable, in 2008. Section 5P makes clear that s 5O, in any event, does not apply in connection with the giving of a warning, advice or other information in respect of the risk of the death of or injury to a person associated with the provision of a professional service. It has no application in the present case.

15. [181]

    Cohen submits that there is no evidence that the Certificate of Occupation related to Building D or that Cohen played any part in the inspection of Building D. I reject that submission. In my judgment the evidence indicates that Building D was a substantial part of the work, the subject of the construction certificate. If this is not so, it could easily have been rebutted by oral testimony.

16. [182]

    I accept the argument that it has not been shown that Cohen was required to have expert familiarity with DGR. It is not Mr Jones’s responsibility to confirm that the gas tank or the gas installation in fact complied with the provisions of DGR.

17. [183]

    It is also disputed that Cohen should have received the certificates of inspection or that he should have checked that a gas compliance plate was attached to the LPG installation. Cohen submits that these matters are dealt with in the DGR and the responsibility for checking compliance during the construction phase does not lie with the certifier.

18. [184]

    In the absence of expert evidence, it is impossible for me to find that a principal certifying authority is required to check each and every technical detail of each and every aspect of the multifarious professions and trades brought to bear in the erection of a school or other complex building. However, a principal certifying authority has a common law duty informed by statute to exercise reasonable care in checking the matters of which the certifier is required to be satisfied before issuing a certificate.

19. [185]

    I was referred to the decision of the Court of Appeal in Ku-ring-gai Council v Chan [2017] NSWCA 226; 224 LGERA 330 in relation to the interaction of the law of negligence with the statutory obligations of a principal certifying authority. Cohen acknowledged that that case was concerned with whether there was a duty owed to subsequent purchasers of a dwelling house to exercise reasonable care to obviate the risk of them incurring pure economic loss because of hidden defects built into the dwelling during the course of construction. The Court of Appeal (Meagher JA; McColl JA and Sackville AJA agreeing) concluded that the Council as principal certifier was not subject to the duty of care imputed by the learned primary judge ([99]). In the course of his reasons, Meagher JA pointed out (at [72]) that a duty of care to avoid economic loss “is not a duty directed to avoiding the risk of physical injury to persons occupying and using a new building. Whether the Council has such a duty and may be liable for such injuries (either to the owner or occupier of the building or the person injured) depends upon the application of quite different principles than those applying to the purchasers’ claim.” His Honour referred to the decision in Fangrove Pty Ltd v Todd Group Holdings Pty Ltd [1999] 2 Qd R 239 at [19] – [20].

20. [186]

    Fangrove concerned the question of the liability of a structural engineer to a future purchaser of the building. McPherson JA said:

21. [187]

    Meagher JA added another reason, applicable to this area of discourse, for the difference in the law’s treatment of economic loss, on the one hand and personal injury on the other (at [72]):

22. [188]

    I understand his Honour was referring to the safety of those occupying and using the new building.

23. [189]

    Voli v Inglewood Shire Council concerned, inter alia, the legal liability for personal injury of an architect who designed the stage which was constructed in a country hall and collapsed under the weight of persons attending a meeting in the hall. I repeat for convenience what Windeyer J (with whom Dixon CJ and Owen J agreed) said at p 85:

24. [190]

    I am satisfied that Cohen owed a duty to exercise reasonable care in the discharge of its statutory functions which were to be exercised to promote the health and safety of future occupiers and users of the building to avoid personal injury to such occupants and users from the erroneous certification of compliance by the various professionals and trades engaged in the building work with the requirements of the building safety regulation, standards or codes informing their work.

25. [191]

    The content of the duty did not extend to the certifier checking the work himself to satisfy himself that it complied. But as the documentation indicates, it was his obligation to obtain from the various professions and trades documentation certifying the compliance of each of them with the requirements governing their work. For instance, this is the very purpose of cl 10 and 11 DGR to enable others to be satisfied that the work has been properly done in accordance with the requirements to which I have referred.

26. [192]

    For the purpose of s 5B Civil Liability Act, the risk was that if in a given area, including gasfitting, the certifier failed to obtain certification of compliance, he may issue a final occupation certificate in respect of a non-compliant building exposing the occupants and users to a risk of personal injury arising from a defect in the building.

27. [193]

    Specifically, for the purpose of s 5B Civil Liability Act, the risk of injury arising from Cohen’s failure to obtain evidence of compliance of the LPG installation before issuing the Final Occupation Certificate was a gas explosion with potentially catastrophic consequences because of a failure of non-compliant component of the gas installation. This extends to an explosion due to the negligent location of, or failure to vent, a second stage regulator. The question of whether Cohen is negligent depends upon a failure to take the precaution of refusing to issue the final occupation certificate until Binah produced a certificate of inspection under cl 10 DGR, and took steps to have a person authorised under DGR attach the compliance plate required by cl 11 to the installation.

28. [194]

    Clearly, the risk was foreseeable and not insignificant. I am of the view that a reasonable person in the position of Cohen would have taken the precaution I have identified. As I have said, a materialisation of the risk may have had catastrophic consequences. Given the dangerous nature of gas, the probability of the risk materialising if the installation was non-compliant was relatively high. Taking the precaution involved no expense on Cohen’s part. Indeed, it involved no more than Cohen discharging his statutory obligations, which he was bound to do in any event when he assumed the role of Principal Certifying Authority for the project. The proper discharge of the functions of a Principal Certifying Authority is of social utility, but that aspect does not offset the other considerations indicating negligence on this occasion.

29. [195]

    I am satisfied that Cohen’s negligence was a necessary condition of the plaintiff’s personal injuries in accordance with the requirements of s 5D Civil Liability Act. As I have already explained in relation to Binah’s liability, had it come to Binah’s attention, say through Mr Hafza, that Enma had completed the job without undertaking the necessary certification requirements arising under DGR, in all probability, he would have engaged the services of an independent gasfitter to test and inspect the installation for compliance. That is to say, to test and inspect the installation to check it was free of patent defects, and if it was not, to rectify them.

30. [196]

    I am satisfied that the negligence of Cohen was a necessary condition with the plaintiff’s personal injuries and that there was no reason why the scope of Cohen’s liability should not extend to them.

Statutory contribution

1. [197]

   In the event I have found each of the College, Binah (IAL), Five Star, Elgas and Cohen legally liable for the plaintiff’s injuries. As I have already said, so far as Cohen is concerned, its participation in the proceedings, although it had initially been a defendant, was only on a cross-claim maintained against it by the College. Each of the other four responding parties have cross-claims claiming contribution one from the other. I have found each of the responding parties liable in negligence. In addition I have found Five Star and Elgas liable for breach of statutory duty. On my reading of the pleadings, Mr Hossain did not proceed against the College for breach of statutory duty under cl 15 DGR, but for the same reasons as I expounded in respect of Elgas’s liability for breach of the statutory duty imposed under cl 16 DGR, the College would have been liable for a breach of cl 15. Clause 15 has been relied upon by the some of the cross-claimants against the College in its capacity as a cross-defendant.

2. [198]

   The principal considerations governing the question of contribution amongst tortfeasors are well settled. The evaluation of comparative responsibility is a quasi-discretionary one calling for a broad assessment of the relative contribution of each tortfeasor in which the principal relevant considerations are, first, the degree of departure of each tortfeasor from the standard of reasonable care, and secondly, the relative causative potency of the specific act or omission of each resulting in legal liability for the plaintiff’s injuries.

3. [199]

   It is impossible to overlook the consideration in this particular case that none of the tortfeasors, as I have found them to be, is the party primarily responsible for the explosion that caused Mr Hossain’s injuries. As I have laboured far too often in giving these reasons that party is Enma, which is deregistered and uninsured. Given that the responsibility of each of the remaining tortfeasors is in a factual sense “secondary” it is very difficult to differentiate them without splitting hairs or descending into an exercise in unreal and false precision.

4. [200]

   To my mind, the broad requirements of justice in the case suggests that liability should be “apportioned” on a pro rata basis. That is to say, the driving consideration of just and equitable contribution led me to the conclusion that each of the remaining tortfeasors should be equally liable to the Mr Hossain, and as amongst themselves, for the damages payable, allowing, in due course, for the requirements of Div 3 of Part 5, and s 151Z(2) Workers Compensation Act 1987 (NSW).

5. [201]

   Expressing this conclusion, I am conscious that only the College has maintained proceedings for contribution against Cohen. However, this does not mean that only the College can recover statutory contribution from it. The absence of formal claims for contribution by each tortfeasor one against the other does not prevent the Court from making appropriate orders which will dispose of the litigation and avoid further litigation: HIH Casualty & General Insurance Limited v Pluim Constructions Pty Ltd [2000] NSWCA 281; 11 ANZ Ins Cas 61-477 at [81] – [82] per Handley JA and Foster AJA. That case involved, inter alia questions of contribution for double insurance between two insurers. The insurers had not cross-claimed against each other on that basis, but had contented themselves with denying indemnity to their common insured for his liability to the injured plaintiff. In that context, the question of the liability of each insurer had been fully litigated before the trial judge even if the issue of contribution had not been formally joined between them. In expressing their conclusion about the absence of formal claims for contribution Handley JA and Forster AJA referred to Croston v Vaughan [1938] 1 KB 540. That decision of the Court of Appeal for England and Wales involved the imperial equivalent and progenitor of s 5 LRMPA. Croston v Vaughan was a motor accident case in which a plaintiff was held entitled to recover each of two defendants who had not formally taken proceedings for contribution against each other. An application for contribution followed the giving of judgment for the plaintiff against each of two defendants and the trial judge obliged. One question on appeal was “whether the learned judge had jurisdiction at all to enter upon the task of apportioning the blame between the two co-defendants whom he had held liable without some separate formal legal proceedings being instituted” (p 564 – 565 per Scott LJ). Scott LJ answered this question by saying (p 565):

Cross claim under 151Z(1)(d)

1. [202]

   By paragraph 11 of the Amended Statement of First Cross Claim, the College has pleaded an entitlement to a statutory indemnity under the provisions of s 151Z(1)(d) WCA from each of the cross defendants in respect of payments of workers’ compensation it has made to, for or on behalf of Mr Hossain.

2. [203]

   As I have found the College negligent, there is now a considerable body of authority which establishes that a negligent employer is not entitled to the benefit of the s 151Z(1)(d) indemnity: Public Transport Commission of New South Wales v J Murray-Moore (NSW) Pty Ltd (1975) 132 CLR 336; I & J Foods Pty Ltd v Bergzam Pty Ltd (1997) 14 NSW CCR 486; CSR Timber Products Pty Ltd v Weathertex Pty Ltd (2013) 83 NSWLR 466; [2013] NSWCA 49 at [43]; Endeavour Energy v Precision Helicopters Pty Ltd (No 2) [2015] NSWCA 357 at [43]; South West Helicopters Pty Ltd v Stephenson [2017] NSWCA 312; (2017) 327 FLR 110 at [172].

3. [204]

   For the reasons explained by Basten JA in Precision Helicopters the employer cannot call in aid s 151Z(2)(e) because the alternative conditions for the special operation of s 151Z(1)(d) expressed the opening words of paragraph (e) of s 151Z(2) have not been satisfied. The first alternative has not been satisfied because Mr Hossain did take proceedings against his employer, and the second alternative has not been satisfied because the occasion has not yet arisen for Mr Hossain to choose whether he will accept satisfaction of the judgment to be entered against the College as his employer, or not. Section 151Z(2)(e) gives s 151Z(1)(d) partial operation only where both the employer, and here, one or other of the other tortfeasors would be legally liable to pay Mr Hossain damages. In Precision Helicopters at [48] Basten JA said:

Quantum

1. [205]

   I will repeat, that as against the College, the plaintiff’s damages are to be assessed in accordance with the provisions of Div. 3 of pt. 5 WCA. There is no doubt that the plaintiff’s whole person impairment resulting from his injuries exceeds the “at least 15 percent” threshold for the purpose of s 151H WCA. The damages payable by Binah (Through IAL), Five Star, Elgas and to which Cohen may have to contribute are required to be assessed under Part 2 Civil Liability Act. In respect of Cohen I appreciate that as I have said above, it is only here formally as the third cross defendant to the College’s first cross-claim. However, for the reasons I have explained, the question of the liability and relative responsibility of each of the responding parties has been fully litigated and I am empowered to order contribution amongst all of the tortfeasors in accordance with the provisions of s 5 LRMPA. Cohen’s liability to contribute is not limited to a liability to contribute to the work injury damages only. I should say, given I have found each of the tortfeasors equally liable were I wrong in my appreciation of Cohen’s exposure, as between Cohen and the College, as I have assessed their responsibility equally, Cohen would be liable to contribute 50 percent of the work injury damages I will assess.

2. [206]

   There are few issues of fact amongst the parties as to the nature, extent and severity of Mr Hossain’s injuries and their consequences caused by the negligence of the tortfeasors.

3. [207]

   To illustrate the severity of his injuries and disabilities for the purpose of WCA Mr Hossain was assessed at having a 71 percent whole person impairment for the disfigurement and physical limitations resulting from his burn injuries, especially involving his right and left arms, scarring of his body (40 percent) and to a degree to his face. Dr Brian Bourke has diagnosed him as suffering from Chronic Post-Traumatic Stress Disorder and a Major Depression. Utilising the WorkCover guidelines for permanent impairment for psychiatric injury, Dr Bourke concluded that Mr Hossain suffers from 26 percent whole person impairment in respect of those psychiatric injuries alone. Dr Sylvester Fernandez diagnosed acoustic trauma to both ears and resulting loss of hearing due to the blast of the gas explosion. He described the hearing loss as severe, involving tinnitus, and assessed his whole person impairment in respect of that injury at 10 percent. Now I appreciate that those figures exceed 100 percent and of course would need to be evaluated together on a combined table. However, those results illustrate the point that the Mr Hossain’s injury was near catastrophic.

The plaintiff’s background

1. [208]

   Mr Hossain was born in Bangladesh on 1 November 1959. He was 50 years of age at the explosion, 58 at the date of trial and now 59. He was raised and educated in the capital, Dhaka. After leaving school he attended the University of Dhaka, graduating with a Bachelor of Commerce degree. He worked in the hospitality industry as a laundry supervisor in a large international hotel in Dhaka supervising 10 or 11 people. He was also politically active and rose to be the head of a major opposition party. He was not, however, a Member of Parliament. He operated more as a senior party apparatchik. He married in 1982 in Bangladesh and the family migrated to Australia in 1986. In Australia he initially worked in a factory at Marrickville making window blinds. From 1987 to 1989 he was employed as a machine operator at Universal Dyes in Botany and from 1990 he worked as a leather technician, having undertaken a course at TAFE. He was employed in a tannery until about 1997 when his employer relocated to Queensland. He obtained a taxi drivers licence, driving taxis from 1997. However, this ceased when he lost his driver’s licence in 2006. Around this time, he and his wife separated although they remain on amicable terms. They have two children.

2. [209]

   In the years before the accident he was actively involved in the Bangladeshi expatriate community rising to occupy the position of president of the Bangladeshi Association of Australia for a period of about 5 years. For a period of time he was a union supervisor with the Building Workers’ Industrial Union.

3. [210]

   After losing his taxi licence he was out of work for a period during which he obtained a licence as a security guard.

4. [211]

   He commenced employment with the College on 4 May 2009 doing various jobs, but working mainly as a caretaker. He was provided with accommodation which included the payment of some services. He performed some security work at the school after hours.

5. [212]

   He had a holiday in his homeland between 6 December 2009 and 7 January 2010, returning to his work at the school.

6. [213]

   He was severely injured in the gas explosion at the College on 10 February 2010. His injuries were such that he was transferred by helicopter to Royal North Shore Hospital and treated in the Intensive Care Unit where he was intubated and ventilated.

7. [214]

   On 12 February 2010 he underwent surgical debridement and skin grafts at both hands and forearms, debridement of his face, upper arms, bilateral thighs and his lower back. On 15 February 2010 he underwent a general anaesthetic for a change of the surgical dressings and again on 17 February 2010. On 19 February 2010 there was further debridement and skin grafting and the surgical change of dressing. This occurred again on 10 March 2010.

8. [215]

   While in hospital he was diagnosed with mild inhalation injuries and was assessed as having severe burns to 30 percent of his body. He was transferred from the Intensive Care Unit on 4 March 2010 and was found to be confused, agitated and refusing to speak English. He required strong pain medication by way of Methadone and Valium which was eventually reduced. He required speech therapy and gradually his confusion and agitation settled. He was discharged from the Sydney Burns Unit on 24 March 2010 to the Royal Rehabilitation Centre at Ryde where he was fitted with pressure garments. His psychiatric injury was diagnosed on 5 April 2010 when he was found to have absconded from his ward at the Royal Rehabilitation Centre. He required scar management and contraction prevention treatment. He apparently discharged himself on the same day. Given his need for ongoing care he moved in to his former wife’s home at Mascot. She gave up her job in a nursing home at that time to care for Mr Hossain as he required assistance with all activities of daily life at that time.

9. [216]

   By 8 September 2010 he no longer required pressure garments for his lower limbs, but his hand function remained significantly impaired. Since his discharge from hospital he has undergone further hand surgery on 17 August 2014 by a Dr Wheen and further surgery by the same surgeon in 2017. At surgery on 17 May 2017, Dr Wheen performed a tendon transfer in an attempt to improve the movement in his right little finger.

10. [217]

    In his report for IAL solicitors of 22 November 2017, Dr John Giles expressed the following opinions (Exhibit 3D4 p 100):

11. [218]

    Dr Eli Revai, psychiatrist agreed with the diagnosis of Post-Traumatic Stress Disorder. He expressed the opinion that Mr Hossain is totally unfit for his pre-injury employment. He said “it is possible that with an improvement of his physical complaints he could work again assisting in the Bangladeshi community in his capacity as an adviser.”

Earning capacity

1. [219]

   The two significant issues in relation to the assessment of damages were as to residual earning capacity and the need for future care. So far as residual earning capacity was concerned the defendants tendered a vocational assessment report from Professor James Bright of 24 February 2016 (Exhibit 3D4.2, p 22). Professor Bright administered a battery of tests including the Kaufman Brief Intelligence Test to assist in assessing Mr Hossain’s vocational capacity. In his oral evidence, he made it quite clear that questions in relation to Mr Hossain’s physical capacity for work were beyond his expertise and required medical opinion for assessment (384.10 - .15T). Having regard to his expertise, Professor Bright was of the view that Mr Hossain may be suitable for employment as a community worker, a security alarm monitor, a gaming worker, a radio dispatcher, ticket seller, ticket collector or a bookkeeper. He also said that his results suggested a degree of “symptom magnification”.

2. [220]

   Professor Bright agreed that there was a difference between suitability for work, and a chance of getting that kind of work. The prospect of securing a job might depend upon presentation at the job interview and it was statistically harder to secure work over the age of 50, becoming increasingly difficult as age increased. He also agreed, however, that there was a degree of flexibility in the workforce these days – he referred to the gig economy. And that casual or part-time work might be an option for Mr Hossain. (390.5 – 391.45T).

3. [221]

   There was other evidence relevant to Mr Hossain’s residual earning capacity. In his second evidentiary statement, (Exhibit E p 215), the plaintiff said that he had invested the proceeds of his workers’ compensation permanent loss compensation in a garment business in Bangladesh. It emerged in cross-examination that whilst in Bangladesh he had met a younger woman of entrepreneurial bent who was involved in a clothing manufacturing company. Mr Hossain and his friend formed a romantic attachment and had had a son together.

4. [222]

   Upon his return to Australia he return to Australia he established a company with a similar name to the Bangladeshi company – MSI EXIM Pty Ltd on 14 February 2013 with a view to importing the garments manufactured by his friends business in Bangladesh into Australia for re-supply or retail. He had hoped the venture would be profitable. However, the company was deregistered on 19 September 2015.

5. [223]

   It seems not to be in doubt that his erstwhile business partner misused the plaintiff’s money (50.41T). He has commenced legal proceedings in Bangladesh in the attempt to recoup his losses.

6. [224]

   I had the advantage of observing the plaintiff in the witness box and I have considered very carefully his injuries, his appearance, his age and his employment background since coming to Australia. I am of the view that residual earning capacity depends not only upon physical capacity, but also upon the ability to find work in the labour market. It is quite clear from the evidence I accept that from a physical and psychiatric point of view, the doctors on both sides of the record consider Mr Hossain totally unfit for work. It may be intellectually and from other aspects there is a theoretical ability to perform the type of work that Professor Bright has identified. However, I am persuaded on the balance of probabilities that Mr Hossain’s prospect of finding work of that type is nugatory.

7. [225]

   Nor do I think his relatively brief involvement with the entrepreneur from Bangladesh evinces residual earning capacity in the sense of an ability to generate income in the labour market by his personal exertion. At best his role was that of an investor. He provided a not insignificant amount of capital from which, as it happens, he has never turned a profit because his business partner misapplied the funds. The clothing importation business never got off the ground. Even if it had, it is difficult to see Mr Hossain’s involvement as other than an investor trying to turn his capital to account.

8. [226]

   I am persuaded on the balance of probabilities that Mr Hossain has no residual earning capacity.

9. [227]

   I will deal with the question of his need for care below.

Damages for non-economic loss

1. [228]

   I have set out above my findings in relation to the nature and extent of the plaintiff’s injuries and disabilities and their affect upon him. He has suffered pain and suffering, loss of amenity of life, loss of enjoyment of life and the most significant disfigurement over the 9 years and 7 months since the explosion.. He was 50 as at the date of injury and he is now 59. On the medium life expectancy tables he has a further 25 years of life expectancy. For the reasons I have sought to explain, as I regard his injuries as in a near catastrophic category. In making this assessment, I have borne in mind the requirements of s 16 Civil Liability Act. I have not been guided simply by what I have said about the degree of whole person impairment which is not directly relevant to the assessment of damages for non-economic loss. I refer to it merely as an indication or an illustration of the severity of Mr Hossain’s injuries and their physical and psychological consequences. Learned Senior Counsel for Mr Hossain suggested an assessment of 80 percent of a most extreme case. Learned Senior Counsel for IAL proposed 60 percent. In my judgment, Mr Hossain’s non-economic loss amounts to 80 percent of a most extreme case and I allow $526,500.00 [1]

Past out of pocket expenses

1. [229]

   Past out of pocket expenses excluding the amount paid by the workers’ compensation insurer for past domestic assistance have been agreed in the sum of $445,414.00 [2]

Past economic loss

1. [230]

   When he was injured the plaintiff was employed by the College as a caretaker. He had other responsibilities. He was earning $924 net per week. I have already found that he has had no residual earning capacity since the date of the accident. The plaintiff’s counsel propose that I should adopt the $924 per week as a base figure, allowing adjustments in accordance with the consumer price index movements, and adding an allowance for his keep. The defendants’ counsel argue that there should be no adjustment to the base. There is no evidence as to the terms of the contract of employment and no evidence of the earnings of a comparable worker to establish movements in the amount Mr Hossain would probably have earned but for the injury had he continued with the College, which I regard as his most likely future circumstances, but for the injury.

2. [231]

   I think I am entitled to take judicial notice of the consideration that wages growth in the Australian workforce in recent years has been somewhat sluggish and may not have kept up with increases in the consumer price index. I think the proper approach to take is to adopt the figures propounded by the plaintiff’s counsel, but adopting a Malec v JC Hutton Pty Ltd approach, I will make a small discount for the prospect that the plaintiff’s increases in earnings would not have kept pace with the consumer price index.

3. [232]

   There is also an issue about whether an allowance should be made for the consideration that the plaintiff’s keep at the school. Electricity and telephone accounts were paid. The plaintiff’s counsel submit that although there is no direct evidence, I should make an allowance of, say, $350 per week net for the value of the accommodation and other benefits. The defendant’s counsel submit that as there is no evidence as to the value of the benefits, no additional allowance should be made.

4. [233]

   The evidence clearly establishes a loss. It is true the evidence does not permit me to precisely assess it. It undoubtedly has some value and I am of the view that the proper approach is to make some allowance for the loss, but exercising restraint because of the lack of evidence enabling accuracy.

5. [234]

   The plaintiff’s counsel’s calculations start on 10 February 2010 at $924 per week and rise to $1,112 on 3 August 2018. The total at the time of hearing was $455,484. Running that same figure forward to the present may have added another 60 weeks at $1,112 or $66,720, which brings the sub-total to $522,204. The plaintiff’s counsel suggest a figure of $350 per week net since the accident for the value of accommodation and other services. I am prepared to allow $250 per week for this amount. The period since the date of accident is 502 weeks and the sub-total is $125,500. The total is $647,704 from which I will deduct 5 percent to allow for the possibility that wages growth would not have kept pace with changes in the consumer price index. The 5 percent is $32,385.20. For past economic loss I allow $615,318.00

Past employer’s contribution to superannaution

1. [235]

   I adopt the convention of 11 percent of the allowance for past economic loss. Allow: $67,684.98

Future economic loss

1. [236]

   The plaintiff’s counsel argue that I should calculate future economic loss on the basis of no residual earning capacity at the rate of $1,112, plus the allowance of $350 for accommodation and services. The defendants’ counsel suggest that I should allow the amount of $1,112 per week for the future, but reduce it by one-third to take account of the vicissitudes including the prospect that the plaintiff can find some paid work, having regard to his education, language skills and his cognitive ability.

2. [237]

   I am of the view that the plaintiff is totally unfit for work. I accept that he is able to operate in the Bangladeshi community to offer a helping hand to others in that community less adept at operating in the general Australian community. However, this is an honorary role in essence and I find it difficult to see Mr Hossain turning it to a profit. Doubtless he does find it an honour to be able to help his fellow countrymen who have migrated to Australia like him. Charging for such assistance as he gives would doubtless lower his standing in the community and make his services less attractive. However, the usual allowance of 15 percent for the vicissitudes should be made. The plaintiff will attain the age of 60 on 1 November 2019 and it is appropriate to allow 7 years for the future to the pensionable age of 67 less 15 percent. The 5 percent multiplier for 7 years is 309.4. The calculation is $1112 x 309.4 = $344,052.00, multiplied by .85 = $292,444.00.

Future loss of superannuation benefits

1. [238]

   Allow 12.48 percent in accordance with Najdovski v Krnojlovic [2008] NSWCA 175 $36,497.00

Future out of pocket expenses

1. [239]

   Counsel are agreed that the allowance for future out of pocket expenses excluding the cost of commercial care should be $160,000 with a deduction for the vicissitudes of 10 percent: Avropiling Pty Ltd v Boveski [2018] NSWCA 146. I allow $144,000.00

Past and future domestic assistance

1. [240]

   There is no disagreement that at all material times in the past, Mr Hossain has had a need for assistance with personal care, domestic duties and with the activities of daily life. So far as the past is concerned, the dispute relates to whether there is a need for personal care since March 2011. The question is whether the plaintiff has a need for the application of creams and other therapy for scar management twice daily as has been provided to him in the past. There is no doubt he is entitled to general domestic assistance since his release from hospital, although there is a dispute about the necessary hours.

2. [241]

   I should say since sometime after his release from hospital, Mr Hossain has had the benefit of paid care provided by the workers’ compensation insurer under WCA. The carer has been his ex-wife, Ms Nasirin Sultana who has nursing experience and is employed in a nursing home as an enrolled nurse. For a period of about 15 months after his release from hospital Mr Hossain lived with his ex-wife and their children in her family home. Ms Sultana gave evidence (83.40; 84.35T) that for a long period of time while Mr Hossain was living in her home she was providing 24 hour care. After Mr Hossain moved out in 2011, Ms Sultana continued to assist him with personal care such as showering and the like, given the condition of his hands. She washed his clothes, helped him shave and looked after the house. She helped feed him because of the difficulty he had with his right hand. She also offered companionship given his mental state. The workers’ compensation insurer has been paying for 25.5 hours of care every week. She also works 6 hours per day, 5 days a week in her work as an enrolled nurse.

3. [242]

   One matter in dispute is the need for Ms Sultana to apply cream to Mr Hossain’s scars, twice daily for about 45 minutes on each occasion. On her calculations she provides greater care than the 25.5 hours per week allowed by the insurance company.

4. [243]

   There were three professional occupational therapists qualified to give evidence in the case. Ms Kelly Walcok, Ms Susanne Borthwick and Ms Elaine Swaby. Ms Walcok and Ms Borthwick were qualified by the defendants and Ms Swaby by the plaintiff. They gave concurrent evidence, Ms Borthwick by AVL. The joint report of the occupational therapist was tendered as part of (Exhibit G, p 10). The contentious issues, as I have said, included whether it was necessary for Mr Hossain to continue to receive the application of cream and massage to his injured limbs. Ms Borthwick and Ms Walcok thought that it was unnecessary and contra-indicated by best medical practice. Ms Swaby at one time was advocating 24 hour care because of Mr Hossain’s psychiatric injuries. She regarded him as a suicide risk and considered he needed to be effectively on suicide watch. She altered this and suggested that he should be receiving companion care for his mood, 14 hours per day. I must say I have no difficulty rejecting both of these opinions. He receives very significant companion care from his ex-wife who attends to provide personal care and domestic assistance. Moreover, he does continue to have an involvement in the Bangladeshi community and has contact with his children. I would not regard either of these matters as necessary because of his injuries.

5. [244]

   Much of the evidence consisted of discussion about how long it takes to clean a small apartment or what hours are involved in other activities which I must say, I found difficult to follow, and naturally it is difficult to make a decision about the nuts and bolts of those matters one way or another.

6. [245]

   With respect to Ms Borthwick and Ms Walcok, Dr John Giles in his report of 22 November 2017, did express the view (I repeat) (Exhibit 3D4, p 100):

7. [246]

   In State Rail Authority of New South Wales v Brown [2006] NSWCA 220, in a passage not reported in 66 NSWLR 540, Basten JA (with whom Giles and Santow JJ agreed) said (at [84] – [85]):

8. [247]

   In my judgment the same may be said in relation to the amounts paid for care and domestic assistance under the same statutory scheme. The amount provided for his treatment “is treatment undertaken in compliance with the scheme mandated by the Parliament”.

9. [248]

   Considering the position of the parties as set out in the Schedule of Damages (MFI 17 – 17A), there is a significant difference between them reflecting the position of their respective occupational therapists.

10. [249]

    In my view an allowance of 40 hours per week should be made during the first twelve months. This will pick up the small amount of additional assistance while in hospital that all of the occupational therapists agree that Mr Hossain is entitled to. The total value of that amount is $672 only. The amount claimed is $24 per hour and $960 per week [3] . The subtotal is $49,920. From February 2011 until 1 October 2019, I will allow 25.5 hours per week at the gross rate paid by the workers’ compensation insurer which is apparently $1,400 per week. I calculate a total of 447 weeks. The total is, on my calculation, $625,800.00. However, I am conscious that Mr Hossain has travelled overseas for some times extended periods. Given the relationship he formed in Bangladesh at one time, it seems a fair inference that he did not travel with his ex-wife on that occasion. To take account of such periods I propose to round the figure down to: $629,920.00 [4]

Future care

1. [250]

   I propose to proceed on the basis that in the future Mr Hossain will continue to receive commercially provided care for 25.5 hours per week. It may be that his wife, an enrolled nurse, will continue to provide the care. However, it is unlikely that she would do so voluntarily given the established commercial relationship. I propose to allow the same rate of $1,400 per week into the future. I have already said that at the age of 59 he has a life expectancy of 25 years on the medium life tables. There should be a deduction for the vicissitudes which I will allow at 10 percent. The multiplier on the 5 percent tables for 25 years is 753.6. The calculation is $1,400 by 3.6 = $1,055,040 multiplied by .9 = $949,536. $949,536.00

Fox v Wood allowance

1. [251]

   As agreed, $35,031.00 [5]

Work injury damages

1. [252]

   The damages payable under Div. 3 of Pt 5 of the Workers’ Compensation Act relate to the amounts I have calculated under Pt. 2 of the Civil Liability Act for past and future economic loss. The amount is: $1,046,974.00 [7] .

Deduction under s 151Z(2) Workers’ Compensation Act 1987

1. [253]

   In accordance with State of New South Wales v Kennelly (No 2) (2001) NSWCA. It is necessary to make a deduction from the civil liability damages for the irrecoverable portion of the contribution otherwise payable by the employer under s 5 Law Reform (Miscellaneous Provisions) Act 1946. Although there are 4 civil liability tortfeasors it is unnecessary to calculated the deduction individually. It is sufficient that they be treated globally and that the difference between the contribution otherwise recoverable and the contribution actually recoverable is deducted from the total civil liability damages.

2. [254]

   But for the provisions of Div 3 of Part 5 WCA the employer’s contribution to the civil liability damages at the rate of 20 percent would have been $748,468.80 [8] . The amount payable under Div 3 of Part 5 at the rate of 20 percent of the work injury damages is $209,394.80 [9] . The difference is $539,074. This is the amount by which the civil liability damages must be reduced under 151Z(2)(d) WCA. I will ignore the 61 cents. The calculation is $3,742,344 minus $539,074 = $3,203,270.00

Summary of damages

1. [255]

   Summary of damages:

Judgments and orders

1. [256]

   In accordance with short minutes of order agreed by the parties on 25 October 2019, final orders are:

   1. (1)

      Judgment for the Plaintiff against the First Defendant in the sum of $1,046,974.

   2. (2)

      Judgment for the Plaintiff against the Third Defendant under s 601AG Corporations Act 2001 (Cth) in the sum of $3,203,270.

   3. (3)

      Judgment for the Plaintiff against the Sixth Defendant in the sum of $3,203,270.

   4. (4)

      Judgment for the Plaintiff against the Seventh Defendant in the sum of $3,203,270.

   5. (5)

      Declare under s 5 Law Reform Miscellaneous Provisions Act 1946 (NSW) that each of the First Defendant, Third Defendant, Sixth Defendant, and the Third Defendant to the First Cross-Claim, are amongst themselves equally legally responsible for the Plaintiff’s injuries.

   6. (6)

      Satisfaction of one judgment discharges the others pro tanto.

   7. (7)

      Grant leave for the Third, Sixth and Seventh Defendants to file Cross Claims against the Third Defendant to the First Cross Claim claiming contribution and indemnity pursuant to s 5 Law Reform Miscellaneous Provisions Act 1946 (NSW) by Friday 1 November 2019.

   8. (8)

      Judgment for the First Defendant in relation to its Cross Claim against the Third Defendant in the sum of $209,394.80.

   9. (9)

      Judgment for the First Defendant in relation to its Cross Claim against the Third Defendant to the First Cross-Claim in the sum of $209,394.80.

   10. (10)

       Judgment for the First Defendant in relation to its Cross Claim against the Sixth Defendant in the sum of $209,394.80.

   11. (11)

       Judgment for the First Defendant in relation to its Cross Claim against the Seventh Defendant in the sum of $209,394.80.

   12. (12)

       Judgment for the Third Defendant in relation to its Cross Claim against the First Defendant in the sum of $209,394.80.

   13. (13)

       Judgment for the Third Defendant in relation to its Cross Claim against the Sixth Defendant in the sum of $748,468.80.

   14. (14)

       Judgment for the Third Defendant in relation to its Cross Claim against the Seventh Defendant in the sum of $748,468.80.

   15. (15)

       Judgment for the Sixth Defendant in relation to its Cross Claim against the First Defendant in the sum of $209,394.80.

   16. (16)

       Judgment for the Sixth Defendant in relation to its Cross Claim against the Third Defendant in the sum of $748,468.80.

   17. (17)

       Judgment for the Sixth Defendant in relation to its Cross Claim against the Seventh Defendant in the sum of $748,468.80.

   18. (18)

       Judgment for the Seventh Defendant in relation to its Cross Claim against the First Defendant in the sum of $209,394.80.

   19. (19)

       Judgment for the Seventh Defendant in relation to its Cross Claim against the Third Defendant in the sum of $748,468.80.

   20. (20)

       Judgment for the Seventh Defendant in relation to its Cross Claim against the Sixth Defendant in the sum of $748,468.80.

   21. (21)

       The First Defendant (subject to the provisions of s.346 of the Workplace Injury Management and Workers Compensation Act 1988 and div.3 part 17 of the Workers Compensation Regulation 2016), Third Defendant, Sixth Defendant, Seventh Defendant, and the Third Defendant to the First Cross-Claim, are to pay the Plaintiff’s costs of the proceedings; save that the Third Defendant to the First Cross-Claim’s liability for costs is limited to 20% of the Plaintiff’s costs.

   22. (22)

       Each party is to bear their own costs of each of the cross claims.

   23. (23)

       On the condition that Notices of Appeal are filed by 22 November 2019, the orders, declarations made are stayed until the determination of those appeals.

   24. (24)

       Liberty to apply on 5 days’ notice for the purpose of permitting the first defendant, if it wishes, to seek leave to amend its cross claim to pursue an action pursuant to s151Z(2)(e) Workers Compensation Act 1987 in the event that such a cause of action becomes available.