Randall

District Court New South Wales

Case Name : Anthony Randall v MPM Maintenance Services Pty Ltd &Ors
Medium Neutral Citation :
Hearing Date(s) : 5-7, 11 March 2019
Date of Orders : 12 June 2019
Date of Decision : 12 June 2019
Jurisdiction : Civil
Before : Hatzistergos DCJ
Decision :
Catchwords :
Legislation Cited : Civil Liability Act 2002 (NSW) ss 3, 58, 5R Law Reform Miscellaneous Provisions Act 1946 (NSW) s 5 Workers Compensation Act 1987 (NSW) ss 151D, 151N, 151Z Workplace Injury Management and Workers Compensation Act 1998 (NSW) s 280A
Cases Cited : Atkinson v Gameco (NSW) Pty Ltd [2005] NSWCA 338
Boral Bricks Pty Ltd v Cosmidis (No 2) [2014) NSWCA 139
Bon Appetit Family Restaurant Pty Ltd v Mongey [2009) NSWCA 14
Bourke v Hassett; Bourke v Victorian Work Cover Authority [1999) 1 VR 189
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Bulstode v Trimbel [1970) VR 840
Ghunaim v Bart [2004) NSWCA 28
Gordon v Truong; Truong v Gordon [2014) NSWCA 97
Gower v State of New South Wales [2018) NSWCA 132
Howley v Principal Healthcare Finance Pty Ltd [2014) NSWCA447
ltex Graphix Pty Ltd v Elliott [2002] NSWCA 104
Lee v Wickham Freight Lines Pty Ltd [2016] NSWCA 209

Moravatju v Moradkhani [2013] NSWCA 157 Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492; [1985] HCA 34
P & M Quality Smallgoods Pty Ltd v Leap Seng [2013] NSWCA 167

Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99
Salvation Army (South Australian Property Trust) v Rundle [2008] NSWCA 347
Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208
South West Helicopters Pty Ltd v Stephenson [2017]
NSWCA312
T and X Company Pty Ltd v Chivas [2014] NSWCA 235
TNT Australia Pty Ltd v Christie(2002) 65 NSWLR 1; [2003] NSWCA 47
Texts Cited : N/A
Category : Principal judgment
Parties : Wayne Mervyn Randall (Plaintiff)
MPM Maintenance Services Pty Ltd (First Defendant)
Allianz Australia Workers
Compensation (NSW) Ltd (Second Defendant)
Representation : Counsel:
Mr M. Cranitch SC (for the Plaintiff)
Mr T. Meakes (for the Plaintiff)
Mr A. Lloyd (for the First Defendant)
Mr S Flett (for the Second Defendant)

Solicitors:
Moray & Agnew Lawyers
Paramount Lawyers
RGSLAW

FileNumber(s) : 16/88821
Publication Restriction : N/A

JUDGMENT

  1. On 13 May 2013 the Plaintiff occasioned personal injuries arising from an accident whilst carrying out work at the former ANZ bank at Pitt Street Sydney.
  2. At the time he was employed by MPM Recruitment Pty Ltd and he was contracted to work for MPM Maintenance Pty Ltd (the First Defendant). He brings this claim for damages against the First Defendant and Allianz Australia Workers Compensation (NSW) Ltd (the Second Defendant) being the insurer of his then employer.
  3. The background is as follows.
  4. Employment

  5. On 17 October 2012 the Plaintiff signed a contract for casual employment with the First Defendant. He accepted that in signing he understood that he was employed on a temporary, job to job, basis. MPM Recruitment Pty Ltd told him of the particular job and introduced him to the host employer or he was sent to the job. After meeting the host employer he would go through the process of them checking his qualifications and then inducted him into the position. The Plaintiff stated that each host employer would tell him what the job was and what he was required to do.
  6. The Plaintiff gave evidence that in November 2012, whilst working in the First Defendant’s employ as a crane operator to operate a fix scantry at Wetherill Park, he was required to lift panels off a table, tidy them up and put them away. He stated that he was stripping one of the panels down when he strained his back. He contacted his employer, told them what had happened, and indicated that he wanted to have a few days off to have his back treated. He did so, before returning to work. He was then requested to fill in a form as to the injuries. He stated that he was subsequently contacted by an insurance company representative to say that he wasn’t going to be compensated for his claim. He stated that he didn’t thereafter “put one in.”
  7. After 2005 he had what was described as a heart problem that required a stent. In 1987 he developed a ganglion after a bandsaw injury to the wrist that required surgery
  8. The Plaintiff nevertheless stated that up until the accident the subject of these proceedings, his state of health was fine and he did not have any aches or pains or anything else
  9. Accident
    The Plaintiff

  10. On Friday 10 May 2013 the Plaintiff was sent by the MPM Recruitment Pty Ltd to work for the First Defendant on a building which containing former the ANZ Bank offices earlier described. He attended at 6:30am. He was instructed that along with others they were to strip out the premises and he proceeded to do work the whole of that day. He did not have any issues on that occasion. He described there to be “full lighting.”
  11. 9 In cross examination the Plaintiff stated that MPM Recruitment Pty Ltd did not attend with him at the work site. He explained that when he went to the site he met Mr Young, and a number of other workers turned up after he did. He said that there was no toolbox meeting, and that Mr Young told them that they were to strip out the premises. This was work he had previously done. He accepted that whatever tools he used that day were provided by Mr Young and any direction that came to him were also provided by Mr Young who was described as the site foreman or supervisor. He stated that that day he also tore up some carpet tiles and pulled out glass panelling
  12. The Plaintiff returned on Monday 13 May 2013. On that occasion, there were less workers. He described there being only one ladder, being of solid tubular metal which he said was inappropriate for the job. He stated that he pointed out that it was illegal to have the ladder on site.
  13. The Plaintiff stated that Mr Young told him what to do and where to work. He stated that at some stage an electrician turned up and disconnected wiring in the ceiling, whilst leaving 2 power points to be used. At that point, he described the working area as being totally blacked out. However, there were two work lights brought in by people from MPM Maintenance Pty Ltd. He explained that these lights were in a cradle on the floor and they were very strong. After they had been set up, one of the persons, described by the Plaintiff as “Lupo”, decided to take the ladder and one of the lights to work at the back of the bank. Subsequently, he stated that two other workers decided to go in that section as well and they “took the light with them, or turned it away from use and just left us, you know, in a – a really bad lit section of – of the bank.” He explained that the light was totally opposite the direction he was working.
  14. In cross examination, the Plaintiff maintained that on the Friday 10 May 2013 there was full lighting but on 13 May 2013, after the electricians had disconnected the power and the two working lights were brought in, they were moved.
  15. The Plaintiff said that he was then directed by Mr Young to start stripping out the panels and the back straps. He described the lighting as “very, very bad”, and said he told Mr Young that it was not safe and that more light was required. He said that Mr Young responded with, “Mate, if you don’t want to get up there and do it, walk”. In the circumstances, the Plaintiff said that he had no choice and needed the money, so he continued with the work.
  16. Whilst it was put to the Plaintiff that Mr Young did not tell him to do the work or get off the site, he reiterated that he did.
  17. The Plaintiff said that he and a co-worker, Martin, (who he described as the Scottish fellow ) got up there and started pulling down panels. The Plaintiff described that he was working where the tellers would have sat. At that point, he said he couldn’t see where he placed his feet, and that the counter was covered in residue from the broken ceiling panels
  18. In describing the accident, the Plaintiff stated:
    • Well, I had one of the strips. If you – if you look at the strip running along the ceiling I had – I’d had it hanging over me shoulder and I was pulling the panels out and – and Martin was behind me and as I went to heave on it I just went. Now, whether it was because he – he had also had hold off it, he grabbed at the same time and I just went off it, I lost me footing
  19. The Plaintiff said that when he lost his footing he couldn’t see where he was placing his feet. Consequently, he fell sideways, head first, into the concrete on the left side of his head. He described his right leg as flying out and he hit the edge of the bar where the teller would have sat, causing him to sustain a cut. He threw his right hand out as well, but did not know what happened and was “blanked out for a bit”. He stated that Martin then jumped down and grabbed hold of him. Martin then pulled him up before he had realised what had happened, and he described as feeling not happy, dazed, a bit angry, and was trying to get his eyes back into focus.
  20. The Plaintiff then said that Martin yelled out and one of the other workers brought the light back around. He then noticed that his “army pants” had been cut and it went through the bone, and he realised that he was bleeding. He noted that he, “wasn’t feeling real good in the head anyway”. He stated that he asked for a first aid box, but he was told that there wasn’t one, so he went to his bag and got a hand towel and wrapped it around his leg.
  21. In cross examination the Plaintiff stated that he couldn’t remember whether he did or did not give an account of falling sideways to any doctor that he had seen, or to any other person who he had given an account prior to giving evidence before me. He stated that if it wasn’t recorded in doctors’ notes, he didn’t know why. The Plaintiff’s attention was drawn to a statement he prepared on 11 November 2016, where he is recorded as stating:
    “My co-worker did not communicate to me that he had been working on the panel, and on removal of the panel by him I lost my footing, subsequently hitting my knee on the counter and falling head first on the concrete floor.”
  22. He stated in evidence that he could not remember if that was a truthful and accurate account of his fall. He stated he did not know of any reason why he would’ve given an untruthful statement or an inaccurate account. He conceded that in the paragraph he did not give any history about falling sideways. He reiterated that he fell head first onto the concrete floor. It was put to him that there was no history of falling sideways, as he had recounted in evidence in chief. He responded that he had fallen down from a distance and head first. He accepted that the distance was about 1.25 metres and although he had put his right hand out during the fall, his fall was not broken. He accepted that the account he had given before the Court was that the first thing that made contact with the concrete floor was his head, adding that’s all he could recollect because he had “a period of blackness” when he got up. He stated that he could not recall whether he lost consciousness. He recalled telling some people about the blackout, but he couldn’t recall whether he had told other people whether he had a loss of consciousness. When further questioned about the matter, the Plaintiff stated:
    I didn’t say I blacked out. I said I had a period of – when – when Martin pulled me up, I – I remember falling, and I remember him pulling me up. I know when I went down, I went at a 45 degree angle, I went that way. My head slammed into the concrete, my leg slammed into the edge of the counter, and I had one hand out. Now, from the time that I was getting pulled up, I don’t remember in between that. So whatever is – is – is there is because I can’t remember. So I assumed I blacked out. That’s why I said I blacked out.
  23. The Plaintiff accepted that he had a conversation with Mr Young shortly after the accident. When it was suggested to him that he said to Mr Young that he stepped back off the bench and fell and grazed his shin, the Plaintiff stated that he did not recall saying that to him at all and that he couldn’t remember. When it was suggested to the Plaintiff that he had in fact had a conversation with Mr Young where he explained that what had happened was that he had landed on his feet, he rejected this. He further did not recall saying to Mr Young that the graze on his shin was the only injury that he sustained, and didn’t know whether it was possible that he said such a thing. He rejected the proposition that the graze on his shin was his only injury and at the time there was no blood. He reiterated that he did not ask to go home, but all workers were told to go home.
  24. It was put to the Plaintiff that he did not tell Mr Young the history about falling and striking his head. He stated:
    Tom was there, he saw – he saw the way I was and whatever conversation I had with him there and then – so he – he was aware of the fact that I’d went head down into the concrete. He was aware of the fact that I was bleeding from the cut, and that’s why he has told everybody to pack and we’ll leave early, which we did.
  25. It was put to the Plaintiff that Mr Young was not present when the fall occurred. The Plaintiff maintained that he was. The Plaintiff stated that he could not remember telling Mr Young any history of having any back or neck pain. The Plaintiff stated that the time of the fall was at about 2:15-2:20pm in the afternoon.
  26. During cross examination it was also put to the Plaintiff that he had knowledge of work, health and safety requirements. The Plaintiff reiterated that whilst he didn’t feel comfortable working on the bench top, he had no choice. When it was suggested to him that he did in fact have a choice, he rejected this and said “There’s not when you got to put bread and butter in your mouth.” It was put to him that there are alternatives to employment, such as social security. He accepted that he was aware of this.
  27. It was also put to him that if he felt sufficiently aggrieved by what he had been directed to do, he could go back to the recruitment people and say “look that’s a dangerous job I’m not going to do it. Can you give me something else?” The Plaintiff responded that he was on the job. He stated that everybody knew it was unsafe but they continued to do it.
  28. Thomas Young

  29. Thomas Young gave evidence in the First Defendant’s case. He accepted that he worked for the First Defendant on 13 May 2013 as a site foreman, stating that he had a memory of working for the company for around 12 months at that point. He stated that he had a vague recollection of working at the ANZ Bank. He said that he did not have a 100% recollection of what the lighting was like on the site that day. However, his best recollection was that “the lighting would have been off at – but there’s still the safety lighting, so it would have been dull, but not as bright as what we have here.”
  30. Mr Young accepted that on the 13 May 2013 an electrician had disconnected the electricity and stated that it would have happened prior to commencing work that day. He said that in those circumstances, temporary lighting would have been provided. He described this as “just plug into a power point floodlight”. Whilst he recalled there were ladders on the site, he didn’t recall how many.
  31. Mr Young recalled that the nature of the work that the Plaintiff was required to do was to de-fit a shop, which was demolition work. He described the premises as an old bank where there were desks, walls and everything that you would see in a bank. He did not recall whether there was toolbox talk, or what instructions he had given to the Plaintiff in relation to the work. He stated that he had forgotten about everything until he read a statutory declaration when the case was brought to his attention.
  32. Mr Young’s attention was taken to a register of injury form dated 14 May 2013. He accepted that he completed it. He stated that the description of the incident in that form was not based on something he had actually observed. He said that it was based on what he was told by the Plaintiff upon his entrance back onto the job site. Prior to him coming back in, Mr Young said he was helping an electrician take his tools to the van and he could not remember how long he was absent from the site. From memory he recalled being told by the Plaintiff that he stepped back off the bench and grazed his shin as he landed on the ground. As far as Mr Young was aware, the Plaintiff had landed on his feet. Mr Young reiterated that no one else told him about the accident, and he stated that the note that he had prepared was truthful and accurate.
  33. Mr Young gave evidence that sometime after the accident he was contacted by his “superiors” and asked to complete a statutory declaration. That statutory declaration dated 10 September 2013 read as follows:
    “At the time of the injury Anthony Randall was pulling down gyprock whilst standing on two bench tops. I was not in the room while it happened but when I came back in, Wayne informed me that he stepped back off the bench and fell and grazed his shin. Wayne told me he landed on his feet and that the graze on his shin was his only injury. When he showed me the graze there was no sign of blood or did not look like he needed stitches. I offered Wayne first aid assistance but he refused it and just asked to go home early and rest his shin, which I allowed him to do.”
  34. Mr Young stated that he didn’t recall seeing blood and didn’t remember if he looked at any other part of the Plaintiff’s leg. In particular, he didn’t recall looking at his socks or his boots.
  35. In cross examination, Mr Young stated that prior to work on that day he had supervised at other sites. He accepted that so far as the site was concerned on that day, it was under his control. He stated that when persons such as the Plaintiff came onto the site, they were allocated tasks. He could not remember if there was in fact a toolbox meeting on13 May 2013, but accepted that it was the usual practice to have one
  36. Mr Young stated that he could not recall whether he had done an occupational health and safety procedures course prior to the accident, and that it was not necessary for him to have done so in order to qualify as a foreman or supervisor. He stated that he believed that height regulations required the provision of barriers at 1.5 or so metres. When it was put to him that it might be as low as 1 metre, he stated that he didn’t think so from memory
  37. Mr Young stated that he was not aware of tools that could take down ceiling tiles whilst a person was standing on the floor. He said that his recollection was that ladders, lights and basic hand tools (probably some shovels and wheelbarrows) were provided. He couldn’t remember how many work lights were provided, but described these as standing a metre from the floor with a stand in the middle, branching off so that there were two lights either side. The lights were described as 50cm in length. Whilst he could not recall how many lights there were on the day of the accident, he accepted that without them it would have been pretty dark. Mr Young explained that the lights were very bright and that you would need a couple to illuminate the work space, but if one of the lights was pointing away from the work area, then it would be quite dark. He said on other worksites where de-fits were carried out, the ceiling tiles were removed on ladders, or if there was a stable desk, off the desk. He stated that he wouldn’t have any hesitation in telling people to jump up on a desk if they were comfortable. Mr Young accepted that he did not provide any railings on the desks to make sure people did not lose their balance. He also stated that he did not clear the work area on the desk and if there was rubble, it was part of the employees job to clean it up. He stated that he directed to do this and accepted that when a ceiling tile was pulled down, rubble was generated.1.. He further accepted that if someone was standing on a platform without guard rails, there was a possibility of miss­ stepping on the rubble. He accepted that there could be quite significant injuries, even if falling from a metre.
  38. Mr Young stated that at the time of the accident, employees did not have access to a barrier and he did not think it was required. He also accepted that it was probable that a trestle arrangement could have been put up, with scaffolding around it, and that this would be a safer arrangement than standing on a bank teller desk. He further accepted that if the light was pointing away from the workspace, then it would be unsafe to work on such a bank teller desk when pulling down a ceiling
  39. Mr Young stated that when he spoke with the Plaintiff he did not look at the counter top, as he was focused on what the Plaintiff was showing him. He stated that from his recollection, the graze was on the front of the shin but he could not determine the exact position. When he was asked what words the Plaintiff used to state that he had fallen on his feet, Mr Young stated that he can’t remember a conversation he had yesterday, let alone six years ago. At the time he said that there were other workers still working probably pulling things down and making a racket. He acknowledged that he could have misheard a lot, but rejected the suggestion that the Plaintiff fell off the bench and fell onto his head.
  40. In re-examination, Mr Young stated the he did not recall exactly that he had ever asked a worker if he or she was comfortable to jump off a ladder and work on a desk.
  41. Mr Horan

  42. The First Defendant called one of its directors, Mr Horan.
  43. Mr Horan gave evidence that in the course of his duties on 13 May 2013 he attended the subject site. He stated that he was not on the site when the Plaintiff had his accident, but was there that day. He had no recollection of the state of the premises at the time in question. He did not recall the phone conversation with the Plaintiff in the period shortly after 13 May 2013, but believed that he did have one
  44. Mr Horan confirmed that he completed an incident report. He stated that all references under ‘Time of the Injury” appeared to be his handwriting, but the top section was definitely not. He reiterated that he did not observe the accident, and therefore the comments that he had made in the report were based on things people had told him. In the comments section of the incident report, Mr Horan recorded:
    “I just left the site at the time of the incident and struggled to see how this occurred and there was no reason for Wayne to be on the counters.”
  45. Mr Horan confirmed that he also completed a statutory declaration. He said that he could not remember but he would say he was asked by MPM Recruitment Pty Ltd to do so. In that document dated 10 September 2013 Mr Horan records
    At the time of the incident when Anthony Randall was injured I had already left the site. My manager on duty Thomas Young rang me to notify me Wayne had asked to go home because he had grazed his leg. Both Thomas and an External contractor said there was no blood and Wayne rejected the offer of first aid and he just wished to go home so he was allowed.
    Wayne contacted me the following day and said that his GP said that he needed the day off but would be fine to return the following day. At no stage did he mention any other injury and the duties he was performing. I find it difficult to see how any other injury occur
  46. Mr Horan confirmed that putting aside the portion relating to the external contractor those statements were to his knowledge, truthful and accurate. Mr Horan described the part of the statutory declaration recording what occurred as information that Mr Young would have told him
  47. So far as having a conversation with Mr Horan on 14 or 15 May 2013, the Plaintiff’s evidence was that he may have spoken to Mr Horan but he could not remember. Specifically, he couldn’t recollect not mentioning anything about him falling on his head or having back or neck pain
  48. Mr Horan also stated that he sent an email to Kirstie Collings, from MPM Recruitment Pty Ltd, on 18 June 2013 in which he acknowledges recording
    Thomas Young was MPM representative onsite when Anthony Randall reported he injured his leg. At the time of the incident, Thomas was assisting an electrical contractor Mark from M.E.S. Electrical with a heavy object so didn’t witness the accident first hand. Wayne did however go up to Tom and request he go home because he reported that he hurt his shin on the counter of the ANZ tenancy. Tom inspected his leg and has said that there was no blood. It appeared that it was just a bump, but Tom allowed him to leave and Wayne said he would be back the following day, cause he also said it wasn’t a problem. At no stage did he indicate any other issues or symptoms anywhere else in his body. The following day Wayne rang me and wanted to discuss the incident and said that he had been to a doctor and said there was nothing serious he just needed to be off as well, but pressed the fact that it was not a serious injury and didn’t want to jeopardise his position as he needed to work and needed the money for personal issues. I assured Wayne that there was no issue and I’ll see him the following day at work. I never heard from Wayne again. He also never mentioned any other injuries or symptoms to me.”
  49. Mr Horan confirmed that the first part of the email related to things that he had been told by Mr Young and the second part dealt with the telephone conversation that he had with the Plaintiff. That aside, he said he had no recollection of the conversation
  50. In cross examination by the Second Defendant, Mr Horan conceded that the work of MPM Maintenance Pty Ltd was essentially to strip office premises. He stated that permanent staff were employed because part of the business was plumbing. Labourers were provided through MPM Recruitment Pty Ltd and as far as he was concerned, worked under the direction of a supervisor. He stated that the site supervisor was the person who was in charge of the job and gave directions. He stated that tools were located in site boxes which were moved from job to job, and that tools would have been there before the Plaintiff started work
  51. In cross examination Mr Horan accepted that it was unsafe to work from a counter. He stated that as a director, he would never condone the use of a counter in substitute for a ladder or some other suitable workplace appliance. Mr Horan accepted, based on the phone call that he had with the Plaintiff, that the Plaintiff was motivated to keep the job. He stated he could not recall the content of the conversation, but he stood by what he had written in his email
  52. Aftermath of Accident
    Ceasing Work

  53. The Plaintiff stated that he was not offered first aid because there was no first aid kit there. He said that he noticed that his shin was bleeding and the quantity of blood filled his boot up. He said the blood was not gushing, but it was bleeding and you could see the bone. He said it was going into his socks and getting into his boots. When it was put to him that there was no blood on the wound on his right shin, he rejected this and said that this was totally incorrect
  54. The Plaintiff stated that following his fall he asked Mr Young to organise to get him to Liverpool Hospital, but Mr Young refused and told him, “Mate, you know, you’ll be right. Get on the train, it’s just around the corner”. He stated that Mr Young then told everybody to go home for the day. 1 The Plaintiff explained that he then got on a train and later presented at Liverpool Hospital Emergency Department
  55. In cross examination it was put to the Plaintiff that following the accident, he told Mr Young that he would leave the site and take himself to Liverpool Hospital. The Plaintiff rejected this
  56. Mr Young stated that he did not refuse to take the Plaintiff to the hospital and did offer him first aid, however the Plaintiff declined and stated that he just wanted to go home. He stated that work on the site continued that day
  57. He stated that he couldn’t remember if there was a first aid box, but from memory it was probably near the door to the site. When pressed, he said that he could not recall
  58. Mr Young accepted that he stated for the first time in his statutory declaration, some 4 months after the accident, that the Plaintiff asked to go home early. He stated that he did not recall everybody going home early on that day. He said that it could not have happened as there was no need. However, he accepted that it was within his power to make such a direction.
  59. Liverpool Hospital

  60. The Plaintiff stated that when he got to Liverpool Hospital he had a massive headache and the initial lacerate to his leg was kicking in and he wasn’t feeling very good overall. He said that he had to wait for triage, and when he was seen, he was told his wound couldn’t be stitched as it had gone cold and there wasn’t much that could be done. He stated that a nurse looked at his head and said that he would have to go and see his doctor in the morning. The nurse then wrapped a bandage around him and gave him one for the following day
  61. In cross examination, the Plaintiff stated that he recalled being seen by two persons at the hospital. He said that he saw a triage nurse and was told to sit and wait, and was told that he would need stitching. He stated that she also looked at the lump on his head. The Plaintiff accepted that he possibly saw the triage at around 4:50pm. He rejected the suggestion that he told her that he had a laceration or cut to the right leg after falling. He accepted that at that time it may not have been bleeding. He rejected the suggestion that he did not tell the triage anything about having a massive headache, saying that she had a look at the lump on his head. Later however, he stated, “She had a look at me head. She didn’t look at it because she – she liked my hair.” He stated that he then told the nurse about his headache. When it was put to him that he gave no history to the triage nurse of any headache, he stated that he honestly could not remember. He also said that he had no memory as to whether he told the nurse about the history of back or neck pain
  62. The Plaintiff rejected the suggestion that he did not see anyone at the hospital at the time
  63. Shannon Naidu

  64. The triage nurse, Shannon Naidu, was called by the First Defendant. Her evidence was that she worked full time as a registered nurse in the emergency department between 2008 and May of 2013. She stated that as a triage nurse, it was usual practice to make entries into triage notes which she followed and she had no reason on 13 May 2013 to not follow that practice. She accepted that triage was something they do as part of their normal duties. Ms Naidu stated that when given a history by a patient about what brought them to the emergency department, she would record, “Their main – their main presentation, as to why they are present in the emergency department. Their main concern.” She accepted that if the Plaintiff had told her that he had fallen from a height and hit his head, such that he had a look at a lump on his head, her practice would have been to record that information, either about the lump or the fall. She also noted that if she had been told the Plaintiff had a massive headache, then she would also record that. Furthermore, if she had been told that he had fallen from a height and struck his head on a concrete floor, then her usual practice would have been a note to make a note about that detail
  65. Ms Naidu went on to explain that after a patient was triaged then they would be cared for by the waiting room nurse and that person would be making their own documentation
  66. In cross examination, Ms Naidu conceded that she would not make a note if there was no active bleeding, notwithstanding if blood may have gone into a patient’s socks or boots. She stated that if it was several hours after the incident in which a patient went to the hospital, she wouldn’t be surprised to find that there was no active bleeding. Ms Naidu also accepted that if the patient had presented with a complaint of a lump to the head after falling and hitting his head, but appeared to be unaffected, then she would leave that to the waiting room nurse and would not necessarily record it unless it was relevant to the triage at the time
  67. Consultations with Dr Andrew Robertson

  68. The Plaintiff stated that the day after the accident he was at home and could not get out of bed. He stated that he was suffering from pain and discomfort in the head, neck, back, arms, shoulders, and right leg. He stated that apart from the pain killers which he was given by the hospital, he resorted to alcohol. He said that he was informed by Dr Andrew Robertson that he was in intern and that he could not refer him for X-Rays or prescribe anything until the resident doctor was back. The Plaintiff stated that at the time he spoke to Dr Andrew Robertson, he was still affected by alcohol. He said he was told by the doctor to buy pain killers from the chemist and that he couldn’t prescribe anything because he wasn’t qualified to
  69. The clinical notes of Dr Andrew Robertson were tendered. For the consultation on 15/05/2013, they record:
    • Fell off a ladder and sustained a laceration to his right shin.
      Initially seen at LDH ED. Wound was bandaged and he was sent home. Has not brought in DC summary.
    • Today has come to seek treatment.
    • He is obviously intoxicated by alcohol and tells me he has been drinking all morning.
    • Examination
      Wound is approximately 3cm long, serous fluid discharge. No obvious erythema surrounding it. No pus discharging. Minimal signs of infection.
    • IMPRESSION
      Shin wound
  70. The following day on 16 May 2013, Dr Robertson recorded:

    Wound has scabbed over well. No signs of infection. He has not yet filled the script for antibiotics. I stressed the importance of taking them
    His dressing apparently fell off. I have replaced it. WorkCover cert completed.

    Apparently was on a work bench doing demolition work. He slipped while trying to pull something down and cut his leg.

    Is living in a boarding house in Liverpool. He tells me he has no money. His wife is over in Thailand having some kind of operation to remove a tumour that was ? growing in her spine.

    IMPRESSION
    Laceration – work related Healing well

  71. It is not in issue that on both 15 and 16 May 2013 there was no recorded mention of injury to any other part of the Plaintiff’s body, apart from his right leg
  72. The Plaintiff was cross examined about his consultation on 15 May 2013 and it was put to him that Dr Andrew Robertson did have authority to prescribe medications and prescribed Cephalexin. The Plaintiff responded that he did not recall that, but Dr Andrew Robertson possibly could have done so. It was put to the Plaintiff that he did not say anything in the consultation about falling on his head or a lump on his head and he said that he couldn’t recall. It was also put to him that he did not have any neck or back pain and the Plaintiff stated that he did not recall. The Plaintiff did not agree that he did not have a lump on his head from the accident and that he did not have neck and back pain.
  73. In cross examination the Plaintiff could not recall the details of the consultation with Dr Andrew Robertson on 16 May 2013. It was put to the Plaintiff that when he saw Mr Andrew Robertson he knew that he did not fall on his head, did not have a lump on his head, and did not suffer from any neck or back pain due to the accident. The Plaintiff responded that he did not recall. The Plaintiff insisted that he was telling the court what he could remember, but he can’t remember half the conversations that he had yesterday
  74. The Plaintiff was given a Work Cover certificate from 16 May 2013 to 21 May 2013. 196 In the certificate, it is recorded:
    Was on a work bench doing demolition work. Slip. Fell. Cut his leg.
  75. In his evidence, the Plaintiff explained that he then returned to work and was given the job of cleaning the elevated work platforms and keeping the premises clean. He stated that, “I wasn’t doing too good with it, because I had to – even with an elevated platform is in sitting position, not in elevated position. You have to climb up through it to get into it.” He said that his neck and his back prevented him from doing the work properly and that his leg was still bandaged
  76. Claim Form

  77. The Plaintiff accepted that he had completed a claim form on 17 May 2013, in which he stated that he had injured his right shin and described his injury as “lower right shin front on bone”, and described what happened and how he was injured as, “fell onto edge of counter”. The Plaintiff stated that he did not record anything about his headaches, back or neck pain because he “took it like a punch”. The Plaintiff stated that he didn’t know why he didn’t include more details in the claim form as he couldn’t recollect and when pressed stated, “I was basically told just to put down the injury that was evident at the time, which was on my right leg.” He accepted however, that he completed the form and signed it. Later he stated:
    … At the time, when I recorded what I did on the document, I wrote it in very quickly, and at that time, I did not believe that the lump on the head and the rest of the aches and pains were going to be relevant later on in my life. That’s why I didn’t put them in. And I was told to basically – I actually led to write – I was told to write in the evident injury to my right leg, which I did
  78. The Plaintiff stated that he continued to see Dr Andrew Robertson and followed his instructions to take painkillers. He saw Dr Robertson on 21 May 2013 and he recorded:

    The wound is healing well. No signs of infection.
    Will continue POAB.

    Diagnosis:
    Laceration Counselling

    Actions:
    Letter printed.
    Prescription printed: Cephalexin 500mg Capsule 1 four times a day

  79. In the course of his notes, Dr Robertson recorded that the Plaintiff said to him ”well I’m not drunk today” and told him that he had done hard labour his whole life and now his body is failing. It was recorded that the Plaintiff stated that he was drinking a lot and he knew that it caused him to get depressed
  80. The Plaintiff in cross examination by the First Defendant stated that he could not recall what he said in the consultation on 21 May 2013. He accepted at one point that he would have said something, but he couldn’t remember what the conversation was about and what he said to Dr Robertson. However, he stated that if he was truthfully feeling pain in his back or neck he would have told him, but he could not recollect
  81. On 28 May 2013, the Plaintiff again saw Dr Andrew Robertson. In his notes, Dr Andrew Robertson recorded that the wound was healing well but it was still causing the Plaintiff a bit of pain when he touches it. He noted no signs of infection and that the scab was reducing in size. He also recorded that the Plaintiff was having issues with the employer over the claim. Dr Andrew Robertson noted that the Plaintiff should not be doing further demolition work until the wound fully heal d due to the risk of further injury to that area. He recorded that the Plaintiff had been doing light duties the previous week for 10 hours.
  82. The Plaintiff asserted in his evidence that on both 21 May 2013 and 28 May 2013, he complained about his neck and his back although, he stated that the focus of those visits were on his leg. The Plaintiff could not provide a reason as to why this was not recorded. He stated that he had, had “bigger knocks” in his life than what occurred in the subject accident, and he thought it would just dissipate and go away.
  83. On 5 June 2013, the Plaintiff again visited Dr Andrew Robertson, in respect of which Dr Andrew Robertson recorded:

    Laceration to the right leg is still not well healed.

    He went to see a lawyer yesterday. He has told him to raise some new issues with me and Wayne is telling me that the lawyer is requesting scans.

    Wayne tells me that since the accident he has been having neck pain. Neck pain is worse on the right side. Worse with movement.
    No radiation. No upper limb neurology.

    Lumbar back pain is also worse on the right. Describes radiating pain originating from his laceration which travels up the side of his thigh.

    No problems with his gait. No bowel or bladder problems.

    IMPRESSION

    Neurological findings are inconsistent and I am suspicious.
    Ongoing pain around the laceration. It is otherwise healing well. No signs of infection.

    PLAN
    Because this is WorkCover and issues may come into dispute I have decided to thoroughly image the areas in question. I have explained this to the patient. Again should not be working in demolition until the laceration has healed.
    Needs to be reviewed next Thursday with JR

  84. In a certificate completed by Dr Andrew Robertson dated “4 June 2013,” it states: “Has started complaining of neck and lumbar spine pain (05 June) which he tells me are related to the fall. Have requested CT imaging to clarify the cause of the symptoms.”
  85. The Plaintiff said that at this time he continued to perform light duties and that he went in and was later sent home as there was nothing for him to do. He stated that some alternative work was provided in the form of shredding papers. Notwithstanding the notations in Dr Andrew Robertson’s notes, the Plaintiff stated that he was never referred to do X-Rays by him because Dr Andrew Robertson was not qualified to do so.
  86. The Plaintiff could also not recall the consultations he had with Dr Andrew Robertson on 5 and 28 June 2013. He stated that he does recollect being advised by MPM Recruitment Pty Ltd to seek legal advice at one point. He stated that he did not recall telling Dr Andrew Robertson that his lawyer has requested some scans, although he may have, he may not have, he just could not recall. He said that he had previously told Dr Andrew Robertson about his neck pain. When it was suggested to him that it was the first occasion that he so told Dr Andrew Robertson, he stated that he did not know because when he saw him on the 15th of May 2013 he had a lot to say and could not recall everything that he had said to him
  87. In oral evidence Dr Andrew Robertson stated that he did not recall anything about the consultations with the Plaintiff other than what was recorded in the notes. He confirmed that at the time that he was working at the medical practice, he had the authority to prescribe medication. 2 He stated that he did not believe he had any restrictions imposed on his practice whilst working as a GP registrar, but it was his practice to tell persons that he was a training GP. He stated that at the time, he wrote the notes himself on a computer and would type as a patient would talk.
  88. Dr Andrew Robertson stated that his usual practice from the time he worked at Gosford Hospital was to make notes of his consultations, and when he began at the Liverpool Practice in January 2013 he was advised that he needed to take notes. He said that he followed that practice from the time that he started there. He stated that the notes were not transcripts, but he described himself as having taken thorough notes. He said that had he been given a history that the Plaintiff fell on his head onto a concrete floor from a height above a metre, his usual practice would have been to make a note of that, and he could not think of a reason why he would not. He further stated that on the assumption of being told that the patient had a headache and neck pain, he would do an examination following that complaint, and might order further testing or make a management plan. He stated that there was no reason why on 16 May 2013 he would not have followed his usual practice
  89. Again in relation to the consultation on 21 May 2013, Dr Andrew Robertson said there was nothing different about his usual practice. He stated that he did not know how to respond to the statement given by the Plaintiff that he had “done hard labour his whole life and now his whole body is failing him”, describing this as a quote. Dr Robertson confirmed that following seeing the Plaintiff on 05 June 2013 he made a note of his impression and had authority to request further imaging.
  90. Dr Andrew Robertson had no recollection of the Plaintiff stating that he had a lump on his head. He stated that if he had done so, he would have written that down and follow it up with some questions and examine the lump. He stated that there was a standard protocol for assessing persons who had a head injury and in May 2013 he would have followed that protocol
  91. In cross examination, Dr Robertson acknowledged that persons who are intoxicated can give confused accounts and in such circumstances he would be doing his best to obtain whatever history he could about the patient, bearing in mind the intoxication. He stated that he could not remember if, in passing, the Plaintiff mentioned other matters other than those about the laceration to his leg. He confirmed that the consultation notes are not transcripts, but summaries of what he deemed to be the relevant points and accepted that when counselling, not much is written down of what was said as it is essentially counselling. He stated that if the patient had told him about other parts of his body that were failing, he would have made a note about it. He accepted however, that when the Plaintiff told him that his body was failing, he did not write anything specific down. Dr Robertson confirmed that the history he recorded was in accordance with his usual practice Although he confirmed that the Plaintiff was intoxicated he said that the information recorded was the best information that he could get out of him being that he “fell of a ladder and sustained a laceration to the right shin.
  92. The Second Defendant called Phillip Docherty. At the relevant time he was an employee of MPM Recruitment Pty Ltd. He gave evidence that he was an engineer tradesperson, aware of the requirements of engineering type businesses and the employment of labourers generally. He stated that generally, advertisements would be put out inviting people to apply for a position. They would then be interviewed and assessed and engaged following reference checks if found suitable. The employment capacity of a person would then be matched according to their skill and training. Prior to supplying labour, he stated that a site would be visited and a site assessment conducted. After a person had been allocated to a site, they would be followed up by MPM Recruitment Pty Ltd to see how the work was being carried out
  93. Mr Docherty gave evidence that the First Defendant did fit out work, plumbing work and “general” types of work. MPM Recruitment Pty Ltd supplied labour to the First Defendant and other employers. The First Defendant would contact MPM Recruitment Pty Ltd and thereafter MPM Recruitment Pty Ltd would consult whether there was anybody to fulfil the tasks required
  94. Mr Docherty stated that before 2013 he knew Thomas Young and Mr Horan. He visited sites where both of them had been working and was satisfied with their degree of skill
  95. Mr Docherty accepted that prior to 03 May 2013, he had been to the ANZ Bank at Pitt Street where the Plaintiff had been sent as a labourer. In the course of doing so he completed a site assessment. He accepted that he completed a document which recorded the site assessment details as follows 8 labourers, 2 electricians + plumber. Decommission of ANZ office. Take all ceiling tiles, floor coverings + teller’s desk. Roller door + safety glass to skip bin.
  96. He further accepted that the document identified the machinery and tools used on site, including “all general hand tools. Hammer mallet. Hand held. Battery drive jack hammer. Shovel and broom”.
  97. Whilst completing the assessment, Mr Docherty stated that there was someone from the First Defendant present. Mr Docherty stated that the tools were to be supplied to workers on site and that personal protection equipment in the form of face masks would be provided by the client
  98. Mr Docherty described it as normal practice that he attend the site from time to time to check up. He stated that he was not there when the Plaintiff suffered his injury on 13 May 2013. He was satisfied that Mr Young, was a competent supervisor with a knowledge of occupational health and safety requirements . He was not aware of Mr Young ever engaging in unsafe work practices. He said he was confident that any person whom he supplied to a particular job supervised by Mr Young would be adequately looked after. He accepted that Mr Young engaged in tool box meetings and as site supervisor he had total control of the site. He stated that he was satisfied that the Plaintiff would have been adequately instructed of the duties that he was required to do, and would have been given appropriate equipment to do whatever job was required by the host employer
  99. In cross-examination, Mr Docherty stated that he spoke to the Plaintiff after the accident in the office and he filled out an incident report form. He recalled him saying that he would be back starting work tomorrow because he had a cut to his thigh or shin and he had no reason that he wouldn’t be returning the following day. Mr Docherty explained that the account that was given was that the Plaintiff had fallen off a bench and scratched his leg. He asked if he could see the leg and see the problem. He noticed it had a bandage. He stated that he asked Mr Randall about the incident and he wrote down on his work statement that he had fallen off a bench and cut his leg. Mr Docherty stated that the Plaintiff did not mention anything about falling onto his head. He stated that as an employee he was satisfied with the Plaintiffs performance.
  100. Mr Docherty accepted that the reason why he attended sites to make assessments was because he knew that it was his obligation as an employer to do the best he could to make sure that he was not sending employees to places where they would be exposed to unsafe work practices.2 He further accepted that in the site assessment document, it recorded that he would be attending the site on a daily/nightly basis. He stated that he attended the site between 2-3 times per week. He did not accept that in order to discharge his obligations it was necessary for him to go every day. He stated that he had supervisors on site who would manage the site, arid he would go down to the site to visit and make sure things are going ok. He explained that the supervisors on the site were not his employees. Notwithstanding this, he did not accept that he needed to go to the site to check that it was safe every day that there was work. He said that he could not have persons working on the site if he thought it was unsafe, but he did not want to completely take over the management of the site. He accepted that there was nothing in writing to confirm that he visited the site after the Plaintiff started work. Nevertheless, he confirmed that he visited the site “many times’.
  101. Mr Docherty accepted that in his statement of 14 February 2018 he did not state that he actually attended the site on any occasion when the Plaintiff was present. In that statement, Mr Docherty states: I attended the site on a few occasions to check the job in general or check the job site to ensure safety for the MPM Recruitment staff. There was day and night shifts working on the site
  102. Mr Docherty did not accept that it would be relevant to whether the work would be performed safely if there were fewer workers provided than were identified in his assessment. He stated that he knew that part of the job involved working on ceiling tiles, that there were teller’s desks, and that the ceiling tiles were above the desks
  103. When asked about whether he turned his mind to the work method that was going to be used by his employees in removing the ceiling tiles, he asserted that he did make an enquiry. The transcript records

    Q . Did you ever make any inquiry about what the method of work was going to be when it came to your employees removing the ceiling tiles above the teller’s desk?
    A. Well, I would say yes.

    Q. Where do you point to, in your site assessment, where you identified anything about what system of work would be used when your employees came to remove ceiling tiles above that teller’s desk.
    A. ..(not transcribable)..

    Q. And that’s because you didn’t turn your mind to what that system would be. That’s true, isn’t it?
    A. No, the supervisor on site, the guys that managing the site would know
    what they were doing. I’ve got a fair idea that it held up with pegs up above the ceiling, these exact ceilings, are to ceilings that run in the place. So it’s a ladder up, lift them out. There’s no hard and fast rule about it.

    Q. But how would you use a ladder, to your knowledge, if the teller’s desk was in place when your men were removing ceiling tiles above that teller’s desk?
    A. To be truthful..(not transcribable)..used it, the small ladder with the – one metre ladder, or what you’d be standing on the bench to lift the tile out like so.
    Because you’d be up above it.

    Q. And you would know, from what the work that was being done, that that work might involve more than one of your employees being involved in removing this tiles at the same time. True?
    A. Yes.

    Q. And you would know that that might give rise to a risk that there might be some lack of coordination between the activities of your employees when they’re doing that job. That’s right, isn’t it?
    A. I don’t think so. No.

  104. When asked about toolbox talks, attention was drawn to his statement at [26(9)(viii)] where it was recorded, “Toolbox talks were a matter for MPM Maintenance which was carried out at every start of shift and Tom Young would have carried these out”. He rejected the suggestion that he left it entirely up to MPM Maintenance Pty Ltd to determine whether they conducted toolbox talks. He said the toolbox talks took place so that the employees could know what job they were doing
  105. He accepted that he did not record in his document that ladders were required. He further accepted that the provision of ladders was critical to the safety of work, although this was not recorded in the site assessment report. He stated that employees were supplied with ladders nonetheless. He said the First Defendant provided tools on trucks and he knew the trucks were there, and that the equipment was in the trucks to do the tasks. He acknowledged that a site assessment was detailed document which outlined what tools were going to be on the site to complete the job.
  106. He accepted that because his workers were moving ceiling tiles, lighting might become an issue as it would necessary to disconnect the power. He stated that he knew that extra lighting was organised and that there was a supply of
    “three or four light fittings in 6-2m light stuff to put the lights on”. He said that these were to be supplied by the First Defendant from a hire place. He accepted that if the power was disconnected around sometime on 13 May 2013, and the accident happened at around 2:00pm, he would not have conducted an assessment during the time the power was cut off. He stated that supervisors on the site should have relayed with the building managers to isolate the areas and provide alternative lighting use.
  107. He accepted that it could happen that employees might be exposed to situations where they are told by supervisors to do things where it might be unsafe. He stated that if his employees were asked to work in an area that was unsafe and they would rather not work in that area, they were not to do it. He assumed that whoever interviewed the Plaintiff would have given him these instructions
  108. Application for Extension of Time

  109. The initial Statement of Claim was filed against the First Defendant on 22 March 2016. The Amended Statement of Claim joining MPM Maintenance Pty Ltd was filed on 12 July 2018. This was amended by leave granted on 5 March 2019 to reference the Workers’ Compensation Nominal Insurer NSW as Second Defendant in lieu of MPM Maintenance Services Pty Ltd. A Defence by then Second Defendant was filed on 19 September 2018. It was pleaded therein that the proceedings were not maintainable against it as they were commenced without leave having been obtained pursuant to s 1510(2) of the Workers Compensation Act 1987 (NSW). Leave to file a further amended Statement of Claim and Defence noting inter alia, the insurer as Second Defendant, was granted on 5 and 6 March 2018 respectively.
  110. On 5 March 2019 I indicated to the Plaintiff that it would be necessary for it to file a notice of motion and affidavit in support of seeking leave pursuant to s 151D of the 1987 Act. No objection to the granting of leave to file the Notice of Motion was advanced
  111. On 7 March 2019 leave was granted to the Plaintiff to file a Notice of Motion formally seeking an extension together with an affidavit from David Marocchi, solicitor. Mr Marocchi stated that he received instructions from the Plaintiff in late June 2013. He stated that immediately it became apparent to him that the Plaintiff had a potential workplace damages claim against his employer and the occupier.
  112. In or around 24 September 2015 he stated that he arranged for the Plaintiff to be examined by Dr Habib, who found that the Applicant had a whole person impairment of 15%. He stated that prior to receiving Dr Habib’s report, he was in possession of reports from Dr Pillemer and Dr Perla, dated 11 July 2013 and 24 October 2013, which led him to form the view that the Applicant had prospects of exceeding the threshold
  113. Initially an application was made for lump sum compensation under s 66 of the 1987 Act. Dr Harrison then came to an assessment on 04 August 2017 which found 27% whole person impairment
  114. In cross examination, Mr Marocchi conceded that after obtaining the report of Dr Habib he served it on the insurer and the employer for the purposes of making a lump sum claim. He stated that at that stage it was not his intention to claim worker injury damages, but rather a lump sum claim under s 66
  115. 105 The Defendant’s argument asserted that there was a presumptive prejudice by the delay in the Plaintiff commencing the proceedings outside the 3 year
    period contemplated by s 151D. It accepted that it was the worker’s compensation insurer and it was not suggesting that there was a medical gap. The argument raised following the decision of Gower v State of New South Wales. was that it was open to the Plaintiff to put the Second Defendant on notice that it faced the prospect of a work injury damages proceeding within the 3 year time period, whilst it was waiting for resolution of the medical dispute.
  116. 106 Counsel for the Second Defendant pointed out that at the time that the report of Dr Habib was obtained the business was running, and by the time proceedings were commenced in 2018 the business was not running. It drew attention to the evidence of Mr Docherty, who in his statement dated 14 February 2017, stated:
    The Plaintiff was given a toolbox talk by MPM Maintenance prior to the start of the job. This would have been paper recorded as we have Tom Young’s paper work however MPM Maintenance have moved twice since the accident and the records mislaid. The Plaintiff was trained by way of toolbox talk and he was a general labourer and MPM Maintenance attends to that.
  117. Counsel for the Defendant stated that there were documents that were missing but he couldn’t put it any higher than that
  118. Reference for potential for a toolbox meeting was raised by Mr Young in his evidence. He stated that he couldn’t remember if there was a toolbox meeting on 13 May 2013, although it was usual practice to have one. No attempt was made to obtain any such records from the First Defendant (assuming they existed). The Plaintiff’s evidence was that there was no toolbox meeting
  119. The relevant principles in relation to a grant of leave under s 151D of the 1987 Act were summarised in Howley v Principal Healthcare Finance Pty and
    Gower v State of New South Wales
  120. In the circumstances it is difficult to see how the Second Defendant was prejudiced by the absence of any toolbox records. Nor was it suggested that there were any relevant witnesses who were not available to the Second Defendant who could shed light on the matter
  121. Beyond that, MPM Recruitment Pty Ltd did at the time investigate the circumstances of the injury as was evident from obtaining information from Mr Horan in the form of a statutory declaration dated 10 September 2013. Prior to that, an email was forwarded to Kristie Collins on 18 June 2013. There was also evidence of a site assessment which was carried out by Mr Docherty on 03 March 2013 at the premises occupied by the First Defendant. Furthermore, there is the evidence as to the circumstances of the accident including the workers injury claim form.
  122. The Plaintiffs accident occurred on 16 May 2013. He saw his solicitor in June of that year. The Plaintiff ultimately came to have cervical neck fusion surgery on 30 October 2014.
  123. The Plaintiff was seen on 6 August 2015 at the request of MPM Recruitment Pty Ltd by Dr Derek Lee, occupational physician and injury management consultant. Dr Lee concluded that the Plaintiff had experienced improvement in his neck symptoms following cervical fusion but was now experiencing ongoing neck and shoulder pain associated with altered sensation to both upper limbs. He recommended review by the neurosurgeon and assuming a diagnosis of carpal tunnel syndrome, that he would benefit from carpal tunnel decompression surgery. He concluded that maximum medical improvement may not be achieved until around 6-12 months following surgery of both carpal tunnels. Carpal tunnel decompression surgery occurred in October 2015
  124. The Plaintiff’s solicitor referred the Plaintiff for assessment by Dr Habib he reported on 24 September 2015. At that time the proceedings were not statute barred. The dispute as to permanent impairment was not resolved until the issuance of the Medical Assessment Certificate on 4 August 2017 at which time the proceedings were precluded by s 151 D without the grant of leave. Beyond that no argument or evidence was presented that at any stage time did not run due to s 151 DA of the 1987 Act. However a s66 claim was pursued; being a requirement to the making of a work injury damages claim. Furthermore the Plaintiff also needed to establish a permanent impairment of at least 15% pursuant to s 151H of the 1987 Act
  125. Whilst I accept that the Plaintiff’s solicitor could have put the Second Defendant or its insured on notice at the time of pursuing the s 66 claim of its intention to bring a work injury damages claim; this is not a prerequisite to the obtaining of leave under s 151D of the 1987 Act. As was acknowledged in Gower v State of New South Wales by White JA:
    Although in Itex Graphix Pty Ltd v Elliott this Court said that the discretion under s 151D of the WC Act was to be exercised having regard to the rationales for limitation periods expressed in Brisbane South Regional Health Authority v Taylor, no issue arose in Itex Graphix Pty Ltd v Elliott concerning the operation of s 151H of the WC Act. Section 151H is antipathetic to the rationales for a limitation period identified in Brisbane South Regional Health Authority v Taylor if, perhaps because of psychological injury, no proceeding can be brought for years after the event because the degree of permanent impairment cannot be ascertained. None of the cases has considered what the position is if evidence is lost which would tend against the prospects of a fair trial, but the plaintiff could not have brought a claim for damages before the limitation period expired, or before the evidence was lost, because of the legislative constraints. To adapt the language of Basten JA in Strasburger Enterprises Pty Ltd t/a Quix Food Stores v Serna the limits of the discretion are to be found in the subject matter, scope and purposes of the statute. Where the statute imposes barriers against the bringing of claims that result in delay leading to the loss of evidence, but permits leave to be given for the commencement of proceedings, the proper exercise of the discretion is likely to be highly influenced by whether the claim is apparently meritorious and the degree of prejudice.
  126. In considering actual prejudice, the claim as to the absence of toolbox talk records prejudicing the Second Defendant has not been demonstrated. No argument was advanced as to the non-availability of the witnesses described by the Plaintiff as “Martin” and “Lupo”.
  127. In considering the four broad rationales for the enactment of limitation periods referred to by McHugh JA in Brisbane South Regional Health Authority v Taylor, no argument of actual prejudice was ultimately advanced. I accept that in the time that has elapsed memories of each of the witnesses have faded. The Plaintiff was the only witness called who was present at the accident. Other witnesses called received accounts recording the occurrence and complaints. Hence the context is that there is some documented accounts by those witnesses proximate to the accident.
  128. In Salvation Army (South Australian Property Trust) v Rundle, McColl JA stated:
    Brisbane South is authority for the proposition that an application for an extension of time under limitation legislation should be refused if the effect of granting the extension would result in significant prejudice to the potential defendant: … . “Significant prejudice” means such prejudice as would make the chances of a fair trial unlikely: …. For a trial to be fair, it need not be perfect or ideal… (footnotes omitted)
  129. There is no requirement in s 151D in any event for an explanation for the delay. In any event no issue was taken in relation to delay from the time of obtaining Dr Habib’s report up until the time that the proceedings were commenced against the Second Defendant and its insured by the filing of the Amended Statement of Claim on 12 June 2018 and Further Amended Statement of Claim on 5 March 2019).
  130. It was not argued that the merits of the claim were such that they do not otherwise justify the granting of leave.
  131. In all the circumstances the Second Defendant has not demonstrated significant prejudice such that a fair trial is not possible. I am satisfied that it is “fair and just”, or to use another expression, “justice requires” that leave to proceed against the Second Defendant should be granted
  132. Liability

  133. The Plaintiff submitted that the thrust of its case was against the First Defendant and having regard to the evidence of Mr Horan, there could be little doubt that the question of liability had been effectively put to rest. This was because Mr Horan was adamant that the use of the counter in the context was dangerous and he would not have condoned it in substitute for a ladder or some other suitable workplace appliance.
  134. A number of the events which led to the Plaintiff’s accident were not in issue. Mr Young stated that he did not have 100% recollection of what the lighting was like on site on the day. However, he conceded that the lighting would have been off and whilst there would have been safety lighting, it would have been dull and not as bright. He acknowledged that an electrician disconnected the electricity and his evidence was that he was assisting an electrician to take his equipment back to his vehicle at the time of the accident.
  135. The Plaintiff was not challenged in his evidence as to the movement of the safety lighting away from where he was working. Nor was he challenged in relation to his account of working on the bank teller counter in circumstances where he was with another employee removing the ceiling panels. His evidence was that the counter was covered with residue from the broken ceiling panels and as he went to pull one of the strips running along the ceiling, his co-worker who was behind him grabbed it at the same time, resulting in the Plaintiff losing his footing.
  136. Although the Plaintiff told Mr Young that it was not safe to carry out the work in these circumstances as more light was required, he was told that if he did not want to get up there and do it, he could leave. Mr Young gave no evidence contradicting the Plaintiff’s account in this regard.
  137. In an expert report prepared by John Dimopoulos, forensic engineer from Dohmann Consulting, he states:

    The assumed facts describe a scenario in which Mr Randall was directed to use a bank teller counter as an (unprotected) platform to reach a suspended ceiling that he was demolishing. As he was pulling down a section of the ceiling, his foot slipped on the laminated counter which was contaminated with dust and debris. This contamination made the surface slippery, causing him to slip. The lack of any educate protection meant that he fell off the counter.

    The demolition works caused the surface of the counter to be covered (or “contaminated”) with dust and debris. In my experience, a hard, smooth laminate surface as described by Mr Randall, would likely be dangerously slippery when contaminated as described.

    Further, Mr Randall was not provided with any hand tools and aid in the demolition of the suspended ceiling. Since he was instead required to use his hands to pull down the structure, his centre of gravity would have been continuously changing when the structure gave way. Maintaining balance in such a situation would have been very difficult.

    Mr Randall’s changing centre of gravity would have also meant that the level of grip required for him to maintain his traction would also vary.

    The risk of a fall was further increased as Mr Randall was required to work overhead which would tend to raise his centre of gravity and there was no handrail or support provided on which Mr Randall could use to help brace and balance himself.

    To put the counter height of 1.25 metres into perspective, under current Australia Building Code regulations, any balconies or landings which have the potential for a fall from 1 metre or higher require a tarrier to be fitted. It should also be considered in this instance that the ground on which someone would land should a fall occur was a hard concrete surface, increasing the risk of injury.

    I consider that Mr Randall was placed at risk of injury by the defendant in the circumstances described. The basis of the reasoning process leading to that concluded opinion consists in the fact that Mr Randall was directed to stand on a 1.25m high counter that was not suitable as a working surface as it would likely become slippery when contaminated with dust and debris and did not provide any fall protection. The risk was increased by the apparent lack of lighting in the area and the lack of tools or equipment that would reduce the risks associated with removing the suspended ceiling.

    I note that information about the risks of slip and falls and working at heights, together with advice on the control of risks and measures for such incidents, had been widely available to employers (through publications in the trade, industrial and general media) for many years prior to the occurrence of this injury.

  138. At [7.20] Mr Dimopoulos identified the failures which contributed to the incident as follows:
    • The lack of an adequate safe system of work, particularly relating to working at heights and the pulling down of ceilings
    • The lack of risk assessment control processes and procedures to enable the identification of hazards and the control of risks
    • The lack of supervision of the work being conducted at the site to ensure that unsafe systems of work were not employed
    • The lack of resources and equipment, such as suitable platforms or ladders, lighting and tools to reduce the risk associated with working at heights
  139. Counsel for the First Defendant indicated that whilst he was not in a position to make a formal admission of breach of duty, he accepted that the evidence would establish such a breach. He conceded that there was no proper work method statement or toolbox meeting record, and nothing identifying how the work should be done. Whilst he did cross examine the Plaintiff as to a discussion about lighting being “very, very bad,” he did not challenge the Plaintiff as to his assertion that he was told that if he didn’t want to do it, “to walk.” Ultimately, Counsel for the First Defendant conceded that despite not having formal instructions he was essentially admitting that the First Defendant breached the duty of care owed to the Plaintiff.
  140. In the case against the First Defendant I am satisfied that for the purposes of section 5B of the Civil Liability Act 2002 (NSW) the relevant risk of harm was the risk that a worker would fall and be injured when required to work on a bank teller counter over one metre in height from a concrete surface whilst stripping a ceiling with another worker in circumstances where the worker was unable to see what he was doing and dust and debris contaminated the working surface. The risk of harm was foreseeable and not insignificant. I accept that the probability of harm if care were not taken was high and that the likely seriousness of harm was also high. No submission was advanced by the First Defendant that the method identified by Mr Dimopoulos in his report to prevent the exposure of the Plaintiff to risk of harm involved any significant burden nor any social utility in performing the work as undertaken by the Plaintiff.
  141. In the case against the Second Defendant, the Plaintiff submitted that there was very little MPM Recruitment Pty Ltd could have done to avoid the accident. It was contended that it put in place a system of checking and the evidence disclosed that Mr Docherty attended the site to which workers had been sent to ensure so far as he could that safety procedures were in place. During the course of the day however, it was contended that there was little that could be done by the MPM Recruitment Pty Ltd, such that there was little or no negligence displayed by it.
  142. For its part the Second Defendant contended that it would not be liable in the circumstances as it was entitled to rely on the assessment that Mr Docherty had made of Mr Young being confident and being able to provide adequate instructions. It pointed to Mr Docherty indicating in this assessment that he would be attending the site on an ongoing basis. It was argued that Mr Docherty had had made observations and acquired knowledge of Mr Young as he had been working with him for a period of 12 months. In these circumstances Mr Docherty believed that Mr Young was a safe site supervisor and safe enough to trust his employees with. He was also aware that ladders were available and that there was a site box there with all the tools that were necessary to carry out the job
  143. The First Defendant argued that Mr Young, whilst an impressive witness, could not have been a person who had been in the industry for many years. It was argued that he was not trained in carrying out the tasks.
  144. Beyond that the First Defendant points out that Mr Docherty identified in his assessment report that he was required to be there every day because of the nature of the work site, but the evidence indicated that he did not attend beyond the first day. The First Defendant further contended that MPM Recruitment Pty Ltd could not identify that that it was aware of safe work methods or tool box talks when the Plaintiff’s services were provided and nor did MPM Recruitment identify the availability of safe plant and equipment for the task the Plaintiff was required to perform.
  145. Mr Docherty undertook his site assessment on 3 May 2013 and the Plaintiff was not provided until 10 Ma 2013. In his statement Mr Docherty stated:
    “I attended the site on occasions and checked safety on the site. I would have done a site assessment which I will attach.”
  146. Mr Docherty conceded that he did not attend the site on either days that the Plaintiff was in attendance before adding that he had been on site and can say he made a record in his “usual diaries.” Mr Docherty could not say with any level of likelihood that he attended this site at any time after the Plaintiff was provided. Nor was there evidence that he mislaid his diaries.
  147. In his statement Mr Docherty states that:
    Tom and Paul both had work trucks which they had on site and ladders were on his truck. I do not recall what length, how many or what type of ladders that MPM Maintenance provided
  148. Whilst Mr Docherty indicated in the site assessment report that he would be required to attend the premises “ongoing.” I do not infer that this meant every day. No doubt one of the other reasons for attendances was to ensure necessary staff were available. Mr Docherty was aware of the premises upon which the Plaintiff was to work and that a number of different workers would be working on site requiring coordination. He knew that the site was to be used for decommissioning of the offices and that ceiling tiles, floor coverings and safety glass would be removed. Yet subsequent to 03 May 2013 when he carried out his assessment, there is no evidence that he made any subsequent attendance. MPM Recruitment Pty Ltd had a non-delegable duty of care. Yet it took no action to ensure that there was a safe system of work for its employee and the provision of safe plant and equipment. It was not entitled simply to rely on Mr Docherty’s opinion of the expertise of the First Defendant’s supervisor; all the more so as it was limited particularly as to matters of occupational health and safety.
  149. In Atkinson v Gameco (NSW) Pty Ltd, lpp JA with Gyles JA and Hunt AJA agreeing, adopted as the correct statement of principle, the following passage in Bourke v Victorian Work Cover Authority stated by Winneke P (with Brooking and Buchanan JJA agreeing):-

    “True it is that, where an employer sends his employee to work at or in premises occupied or controlled by another … occupation and control by another person may be a relevant fact in considering whether the employer had been in breach of his own independent duty to the employee. But the fact that the employee’s work is required to be done on premises of another does not absolve the employer of his duty. Its impact upon whether he had breached his duty will depend upon all the circumstances. As Lord Denning said in Smith v Austin Lifts Limited [1959] 1 WLR 100:

    ‘Notwithstanding what was said in Taylor v Sims & Sims [(1942) 167 LT 414; [1942] 2 All ER 375], it has since been held, I think rightly, that employers who send their workmen to work on the premises of others cannot renounce all responsibility for their safety. The employers still have an overriding duty to take reasonable care not to expose their men to unnecessary risk. They must, for instance, take reasonable care to devise a safe system of work … ; and, if they know or ought to know of a danger on the premises to which they send their men, they ought to take reasonable care to safeguard them from it. What is reasonable care depends, of course, on the circumstances …”

    (See also Wilson Tyneside Window Cleaning Company [1958] 2 QB 110 at 121-2 per Pearce LJ; Sinclair v William Arnott Pty Ltd (No 2) (1963) 64 SR

    One can conceive of a multitude of circumstances where workmen are sent to work upon premises controlled by others in which the impact upon the discharge of the employer’s duty will vary. It will depend no doubt upon such matters as the employer’s opportunity to inspect the premises, the length of time the employer has put his employees to work on the premises, the awareness in the employer of the danger, his capacity to shield his employees from the danger and various other factors: (emphasis added).

  150. I bear in mind the opportunity MPM Recruitment Pty Ltd had to inspect the work premises to enquire as to the work method safety plan, the equipment available, and its awareness of the danger as noted by Mr Docherty and capacity to shield the Plaintiff. For reasons earlier given the system of work was clearly deficient. In the circumstance I am satisfied that in failing to ensure the safe system of work, safe plant and equipment, breach of the duty of care has been established.
  151. Cross Claim

  152. The Second Defendant has filed a cross claim against the First defendant asserting that its liability is reduced to nil due to the negligent acts caused or contributed to by MPM Maintenance Pty Ltd which caused or contributed to the Plaintiff’s injury loss and damage. Contribution is sought pursuant to s 5(1)(c) of the Law Reform Miscellaneous Provisions Act 1946 (NSW). Pursuant to s 5(2) of the said Act the amount of any such contribution is to be such as may be found by the court to be just and equitable…
  153. The Second Defendant asserted that the First Defendant had clearly breached its duty of care to the Plaintiff.
  154. In submissions the Second Defendant contended that the liability should be assessed at one third. The Plaintiff contended that it should be no more than 10%.
  155. In Lee v Wickham Freight Lines Pty Ltd, Basten JA stated:-
    [15] The starting point for any legal analysis must be the basic proposition that the general law does not impose on a principal vicarious liability for the acts of its subcontractor. Nor did the appellant assert that Wickham was in any sense liable for the negligence of WBH. Further, generally, the law does not impose on the principal a duty of care with respect to the employees of its subcontractor. There may, however, be particular circumstances in which the principal does owe a duty of care to an employee of a subcontractor. It is not, however, to be equated with the duty of care owed by the employer. As further explained by the High Court in Stevens, in a passage adopted in Leighton Contractors Pty Ltd v Fox:

    “The circumstances may make it necessary for the entrepreneur to retain and exercise a supervisory power or to prescribe the respective areas of responsibility or independent contractors if confusion about those areas involves a risk of injury. But once the activity has been organised and its operation is in the hands of independent contractors, liability for negligence by them within the area of their responsibility is not borne vicariously by the entrepreneur.”

    [16] The trial judge adopted in his reasoning a passage from the reasoning of this Court in Bostik Australia Pty Ltd v Liddiard to the following effect:
    “The fact that an employer may be obliged to take reasonable steps to provide a worker with a safe system of work, does not preclude the existence of a duty owed by the others to take reasonable care in their dealings with the worker, whether they be other employees, independent contractors, the occupier of premises which the worker Is required to attend in the course of employment or other road users encountered in the course of travel. Where work is undertaken on the premises of a third party, that party may have a duty, which commonly arises from:
    (a) the degree of control or direction exercised or which the third party is entitled to exercise over the worker;
    (b) the condition of plant or premises under the control of the third party; or
    (c) the activities of others on the site, generally for the purposes of the third party’s undertaking or business.”

    [17] In Sydney Water Corporation v Abramovic the court considered the liability of Sydney Water for the injury suffered by an employee of an independent contractor as a result of inhaling silica dust in the course of his work. A number of potentially relevant factors, none of which was necessarily determinative, was identified in the context:
    “(a) the principal directs the manner of performance of the work;
    (b) the work requires the coordination of the activities of different contractors;
    (c) the principal has or ought to have knowledge of the risk and the employer does not and cannot reasonably be expected to have such knowledge:
    (d) the principal has the means to alleviate the risk and the employer cannot reasonably be expected to do so;
    (e) although the employer has or should have the relevant knowledge and can be expected to reasonably take steps to alleviate the risk, it does not, to the knowledge of the principal, do so.” (footnotes omitted)

  156. In this instance it was the First Defendant that directed the manner of performance of the work. That work required a coordination of activities of different contractors and was a dynamic situation consisting of various tasks. The First Defendant had knowledge of the risk. MPM Recruitment Pty Ltd had the opportunity and obligation to inspect and make the enquiries referred to. MPM Recruitment Pty Ltd recognised this by carrying out a site assessment and acknowledging the need for ongoing site visits. Nevertheless the First Defendant that had the opportunity to alleviate the risk that it created and MPM Recruitment Pty Ltd effectively left it to them to do so. Clearly MPM Recruitment Pty Ltd could not be expected to have been present at every moment as circumstances unfolded in the way that led to the Plaintiff’s injury
  157. In considering this issue I have had regard to the principles in TNT Australia Pty Ltd v Christie and the relative ability of MPM Recruitment Pty Ltd to control or influence the activities and the plant and equipment used in the circumstances leading to the accident
  158. Overall I would assess the First Defendant to be 85% responsible and MPM Recruitment Pty Ltd to be 15% responsible

Contributory Negligence

  1. It was put to the Plaintiff that upon being told to work on the bank tellers in minimal light, he could have gone back to MPM Recruitment Pty Ltd and told them “look that’s a dangerous job, I’m not going to do it, can you give me something else?” The Plaintiff did not embrace this and stated, “I was on the job”.
  2. The Second Defendant contended that in the circumstances the Plaintiff was contributorily negligent in that he was an experienced labourer with appropriate health and safety qualifications, but nevertheless he could have declined to work in the circumstances.
  3. Contributory negligence in respect of the case brought by the Second Defendant is to be determined in accordance with s 151N of the 1987 Act.
  4. The principles to be applied are those set out by the High Court in Podrebersek v Australian Iron and Steel Pty Ltd.
  5. The position under s 151N of the 1987 Act was discussed in Ghunaim v Bart. There McColl JA stated:-

    “[63] the Fact that there is no clear demarcation between an act done without reasonable care for one’s own safety and an inadvertent, thoughtless act was emphasised in sungravure Pty Limited v Meani [1964] HCA 16, (1964) 110 CLR 24 by Kitto, Menzies and Owen JJ. Referring to a submission on behalf of the respondent (plaintiff) that he had merely acted thoughtlessly or inadvertently and not negligently and that in those circumstances a finding of contributory negligence should not be made, the majority said (at 33):

    “An inadvertent or thoughtless act may also amount to a negligent act for the very reason that it is done without thought for or consideration of the consequences that may follow from the doing of it, and whether it is so or not is a matter for the consideration of the tribunal of fact”.

    [64] Winderyer J set the matter in context, saying (at 36-37):

    “A safe system of work is one that is safe for the average workman taking reasonable care for his own safety. It is not a system which is safe only for persons of superior skill whose attention never wanders … In the press of affairs anywhere a need to act promptly may sometimes lead to something being done, which has unfortunate results, but which is attributable to an error of judgment rather than a blameworthy want of due care.”

    [65] In Commissioner for Railways v Halley (1978) 20 ALR 409 at 415, Jacobs J emphasised that it was not sufficient for an employer seeking to establish that an employee was guilty of contributory negligence merely to demonstrate that the employee knew the task at hand was “highly dangerous” In such circumstances, the employer had to establish that the employee also know that what he did, even though highly dangerous, “was not required of him in the performance of his duty.” Murphy J said (at 420) in a passage upon which the applicant relied:

    “Judicial mitigation of the harshness of the contributory negligence rule in its application to injured workers is illustrated by statements such as those in Carlyle v Commissioner for Railways(1954) 54 SR (NSW) 238. Mr Justice Herron said, after referring to a number of authorities: “The result of those pronouncements is that a mistake made by a workman will not usually be a good defence to an action if it was due to inadvertence, hurry, absorption in work or fatigue” (at p 249).

    In Flower v Ebbw Vale Street, Iron and Coal Co Ltd (1935) AC 206 Lords Atkin and Wright, adopting Mr Justice Lawrence’s words, stressed that, in considering this question: “… ‘the tribunal of fact has to take into account all the circumstances of work in a factory and that it is not for every risky thing which a workman in a factory may do in his familiarity with the machinery that a plaintiff ought to be held guilty of contributory negligence” (at p 214). Even more so, it is not for every risky thing that a worker may do in his unfamiliarity with the work that he ought to be held guilty of contributory negligence. Contributory negligence by an employee is not to be determined on the same basis as negligence. Carelessness by an employee due to confusion, fatigue or natural slackening of attention or preoccupation in what he is doing need not, and ordinarily should not, be regarded as contributory negligence (see Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152; [1939] 3 All ER 722). (Emphasis in original)

  6. [66] Commissioner for Railways v Ruprecht [1979] HCA 37, (1979 142 CLR 563 emphasises the necessity, in considering contributory negligence, to pay careful regard to the nature of the work the employee was undertaking in order to assess the significant of the employee’s conduct. Gibbs J (with whom Stephen J agreed) observed (at 568) that “in deciding whether the [employee] was guilty of contributory negligence, one may consider, as part of all the circumstances, such things as inattention born of familiarity and repetition, and the man’s preoccupation with the matter in hand”. Mason J pointed out (at 572) that “ … the existence of an unsafe system of work increases the risk of injury to an employee through his inadvertence.”

    [67] Murphy J (at 576-577) emphasised the risk to which preoccupation with the task at hand exposed the employee, saying: “Employees often become so absorbed in their work that they are inattentive to their own safety. Momentary carelessness is not likely to be prevented or diminished by rules like contributory negligence or even by safety codes (statutory or otherwise) …”

    [68] In Murphy J’s view (at 577 – 578) before an employee could be found guilty of contributory negligence, there must be “wilful misconduct”, having regard to “the cases which show that carelessness by an employee due to confusion, fatigue or natural slackening of attention, or preoccupation in what he is doing , is not be regarded as contributory negligence (see Halley’s Case; Carlyle v Commissioner for Railways (1954) 54 SR (NSW) 238, at 294; Flower v Ebbw Vale Street, Iron & Coal Co Ltd [1936] AC 206, at p 214;Casewell v Powell Duffryn Associated Collieries Ltd [1940] AC 152). It is not enough to show mere knowledge of the risk; the onus is on the employer to prove that the employee knew and fully appreciated the danger at the time and yet went on to incur it.”
  7. The First Defendant, whilst raising the defence, conceded that no case as to contributory negligence was put in cross examination. Nevertheless it did not abandon the defence in light of the position taken by the Second Defendant. It formally adopted the case taken by the Second Defendant although it disavowed that there would be any basis for a finding of contributory negligence relying on the proposition that if he saw anything that was unsafe it was always open to him to just go off and get social security.
  8. In respect of the case brought by the First Defendant contributory negligence is determined in accordance with s 5R of the 2002 Act. The difference between the position at common law embraced by 151N of the 1987 Act and s 5R of the 2002 Act has been highlighted in a number of authorities.
  9. Pollard v Baulderstone Hornibrook Engineering Pty Ltd was a case involving a contracted worker. In discussing the question posed by s 5R of the 2002 Act, McColl JA stated:-
    *15 The appellant was not the respondents’ employee. Different considerations arise in the case of contributory negligence on the part of such persons: Thompson v Woolworths (Queensland) Pty Ltd [2005] HCA 19; (2005) 221 CLR 234 (at) [40]). In an employment situation a court is required to take into account, in determining whether a plaintiff has been guilty of contributory negligence, the fact that the employer had failed top used reasonable care to provide a safe system of work, thereby exposing the plaintiff of unnecessary risks. In such a case, the question is whether, in the circumstances and under the conditions in which the worker was engaged, the worker’s conduct amount to mere inadvertence, inattention or misjudgement or to negligence rendering him responsible in part of the damage: Bankstown Foundry Pty Ltd v Braistina [1986] HCA 20; (1986) 160 CLR 301 at (310).
    16 The circumstances which attract particular consideration when a person is injured in an employment situation may also be relevant, however, when the question of contributory negligence arises in a non-employment context. A question of contributory negligence turns on a factual investigation of whether the plaintiff contributed to his or her own loss by failing to take reasonable care of his or her person or property. What is reasonable care depends on the circumstances of the case. Contributory negligence focuses on the conduct of the plaintiff tested against that of a reasonable person in the plaintiff’s position. The duty owed by the defendant is one of the factors that must be weighed in determining whether the plaintiff has so conducted him or herself as to fail to take reasonable care for his or her safety: Astley v Austrust Ltd [1999] HCA 6; (1999) 197 CLR 1 (at) [30]) per Gleeson CJ, McHugh, Gummow and Hayne JJ
  10. In this case the Plaintiff was carrying out the work assigned to him by the First Defendant pursuant to his contract of employment with MPM Recruitment Pty. It was a dynamic situation. However misguided, the Plaintiff’s actions were undertaken in order to fulfil his assigned duties by a work method he was directed. Having regard to the principles discussed and paying particular regard to the duty owed by each Defendant, I am not satisfied that contributory negligence has been established pursuant to either x 151N of the 1987 Act or s 5R of the 2002 Act.

DAMAGES
The Plaintiff’s Reports
Dr James Robertson

  1. The Plaintiff was seen by Dr James Robertson on 13 June 2013. On that occasion, he contacted the insurer and was advised to fax a report to them to request an MRI and neurosurgical review to be considered and approved. A specialist referral was made to a neurosurgeon.
  2. On 15 June 2013 the Plaintiff again saw Dr James Robertson. He noted that he had obtained a disability support form. Dr Robertson noted that he completed the form, and said that the injury was being investigated and he couldn’t work for three months whilst doing so. He observed that the Plaintiff has not obtained a script as he had no money and had not obtained a health concession card. In these circumstances he was provided with some stock supplies.
  3. Dr Pillemer

  4. On 11 July 2013 the Plaintiff was seen by Dr Roger Pillemer at the request of the First Defendant. Dr Pillemer’s report was only admitted against that Defendant. the report noted:
    History
    On 13 May 2013 he was at a demolition site standing on the counter of an ANZ Bank, and tripping gyprock off by hand. There was a lot of “dust and debris around” and he says the next thing he knew he had fallen head first onto the concrete, sustaining a laceration to his right shin a few centimetres below his right knee. He apparently cut this on the counter. He said that he had to put a towel around the wound and eventually caught a train to Liverpool Hospital.
    Injuries sustained
    In addition to the laceration of his right leg, he also injured his neck and lower back. He complained about these sites in the hospital and also the following day when he saw his general practitioner. He has had ongoing problems particularly with his neck and also his lower back since then.
  5. Dr Pillemer noted that the Plaintiff was off work for a few days and then went back on restricted duties but had to climb up and crawl on a GWP and was really unable to do this, and attempted to carry y on for a few weeks but then had to stop work and he has not worked since then. The complaints noted that his main concern was with the neck, associated with significant headaches and pain going down both arms, particularly on the right side and into the fingers of his right hand. He noted that he felt that all the digits were involved, particularly the thumb, the index and middle finger. He described the neck pain as being constantly present and the symptoms in his right arm were also constant. He also noted that he had slight symptoms on the left side that were going downwards towards his hand. He further noted intermittent radiation down the right leg and into the right foot. The wound to the right leg was noted to have almost healed.
  6. Dr Pillemer opined that the Plaintiff had sustained injuries on 13 May 2013 when he slipped off the counter at ANZ Bank whilst carrying out demolition work. He noted that his immediate concern was a laceration of the right upper tibial region, which was being treated conservatively and was healing. He observed that his main concern at the present time was with his neck and the referred pain in both upper limbs, particularly on the right side. He had marked restriction of movement in the cervical spine as well as features in keeping with some neurological involvement of the right upper limb, possibly a traction injury of the brachial plexus. Symptoms were noted to be predominately in the C6 distributional on the right. Dr Pillemer also noted that he had ongoing concerns with his lower back region which was not worrying him as much as his neck and there was no clear signs of any neurological involvement in the lower limbs.
  7. Under the heading “Attributability”, Dr Pillemer stated:
    In my opinion, Mr Randall’s symptoms are due to his injury on 13 May 2013. On direct questioning, he is quite adamant that he reported his back and neck symptoms at the hospital and also the next day when he saw his general practitioner.
    It should be noted that Mr Randall comes across as being an entirely straight forward and open person, and I would certainly accept that he is getting the ongoing symptoms that he complains of and that his injuries occurred at the time of his accident on 13 May 2013.
  8. In respect of future treatment, Dr Pillemer stated that the Plaintiff needed to see a neurologist/neurosurgeon and would need further investigation carried out, being an MRI of the cervical spine and he might also require investigation for brachial plexus legion, including nerve conduction studies. So far as prognosis is concerned, Dr Pillemer stated that the symptoms were present for 2 months at this stage and if the Plaintiff does have neurological involvement of his right upper limb, then he suspects it would be likely that he would have fairly significant ongoing problems in at least the medium and possibly the long term. He would need to wait for the results of the neurological assessment. In conclusion, he expressed the view that there was no prospect of the Plaintiff getting back to work for at least a few months. He accepted that the Plaintiff may well have some underlying degenerative changes in his cervical spine, which has been aggravated at the time of the fall. In his opinion, he also aggravated underlying lumbar spondylosis but certainly had an additional soft tissue injury of the back.
  9. Dr James Robertson

  10. After seeking Dr Pillemer, Dr James Robertson recorded on 16 July 2013 that the insurer required an MRI request for the Plaintiff. On 23 July 2013, Dr James Robertson records:
    The insurer accepted the claim and the factual details as to what their adviser thought should be scanned in the MRI. Recommend MRI of cervical spine
  11. A referral was thereafter made for an MRI scan to the cervical spine
  12. On 25 July 2013, Dr James Robertson noted that the pain relief was adequate and the Plaintiff was being paid 90% of his pre-injury rates. On 29 July 2013 an MRI of the cervical spine was carried out and reported on by Dr Laughlin Dawes. The report stated:
    Disc protrusions at C5/C6 and C6/C7. Moderate narrowing of the right C3/C4 interatrial foramen. Mild to moderate narrowing of the left C6/C7 interatrial foreman.
  13. On 22 August 2013 Dr James Robertson noted that he received approval for a neurological surgical review
  14. The Plaintiff’s evidence was that since 21 May 2013 he was performing light duties through MPM Access which involved cleaning an elevated work platform. He stated that he wasn’t “doing with it because he had to climb up to get into it”. 340 He stated that he found it difficult because he had to twist because he had a small area to crawl into. He was asked which part of his body prevented him from doing that and he said “It was my neck and my back. It was my leg playing- well I mean (not transcribable)… Bandage on my leg from where it was cut.” He said that he did the job for a few weeks and his condition did not improve. he was given some alternative work of shredding paper a week or 2 weeks after “as they saw I was in –prior- I had problems.” He said he was set up with a machine for him to shred file for two hours before he had a break
  15. Overall, he stated that he went in for 2-3 weeks before eventually he was sent home as there was nothing to do
  16. Associate Professor Mark Sheridan

  17. On 24 September 2013 the Plaintiff saw neurosurgeon, Associate Professor Mark Sheridan, who recorded that the Plaintiff had had nerve conductions and nerve studies which showed a bilateral C6/C7 radiculopathy consistent with injury and symptoms. He noted that he had a mild bilateral carpal tunnel and was complaining of some mild back pain. He recorded that the Plaintiff needed to start physiotherapy and a supervised rehabilitation program and continue this for a few months. He also recommended that the Plaintiff remain on reduced hours and light duties and not be pushed to increase his hours and duties until he gets on top of the pain. He noted that the Plaintiff was motivated to get back to work and that he had a good chance of getting back to normal duties in the end
  18. Between 27 September and 3 December 2013 the Plaintiff was seen by a physiotherapist, Dr Middleton. In all, he had about 20 sessions and various therapies, but he did not find any improvement or difference
  19. On 3 October 2013 Dr James Robertson noted that the Plaintiff has started physiotherapy. He further observed that the Plaintiff was depressed and anxious and psychological therapy was discussed. He noted that the program was for him to continue on light duties until December when he would be reviewed by Associate Professor Mark Sheridan.
  20. On 17 October 2013, Dr James Robertson again saw the Plaintiff and advised him of the importance of not driving and to take amitriptyline.
  21. Dr Perla

  22. On 24 October 2013, the Plaintiff saw Dr Sam Perla on the request of the insurer. Dr Perla obtained a history from the Plaintiff that his lower back pain, which he thought commenced at the time of the incident, was “not too bad”. He noted that he recorded ongoing chronic neck pain, headaches and radiating pain in both upper limbs and hands to both sides. In his conclusion, Dr Perla stated that the Plaintiff did sustain a laceration to his right shin area but also on the history provided, fell and in his opinion aggravated a pre-existing degenerative condition of the cervical spine. He stated that he had spoken to Dr James Robertson, who informed him that he did believe there was a fall onto the Plaintiff’s head which caused the neck pain, although it was not clear as to why the original certificates and documents note the shin laceration only
  23. In a second report of the same day, Dr Perla records that he viewed a surveillance report which he identified as supporting his thoughts that the Plaintiff should be able to undertake normal hours whilst on suitable duties. He recorded that the question of whether the Plaintiff would in fact be fit to undertake most of the normal duties would be determined by an independent medical expert provided with the surveillance reports. Dr Perla noted that circumstances in which according to Dr Robertson, records that the Plaintiff was having neck pain following a consultation on 05 June 2013 after the Plaintiff has seen a lawyer who was asking for some new issues to be raised and some scans obtained. He noted that Dr Robertson still believed that the considering injury was witnessed and that there was a sustained neck injury and possibly a back injury at the time of the accident. Dr Perla thought the Plaintiff should be able to improve over the following and within 4-6 weeks should be able to complete pre-injury duties and hours. He considered that the results of the MRI were more likely to be pre-existing and the injury caused temporary aggravation that should cease in 4-6 weeks’ time.
  24. Dr James Robertson

  25. On 1 November 2013 the Plaintiff saw Dr James Robertson, who recorded that he had considered suicide and set up a hose to the car. He noted that he had received different phone calls from different people regarding the work cover claim. He visit to injury management consultants was described as “not a pleasant experience”. The physiotherapy however had been good and he thought it was starting to work. He noted that the Plaintiff had been off work and could not do it until treatment had continued for longer. Dr Robertson recorded that the neurosurgeon stated that there was to be no increase in hours or duties until the physiotherapy treatment had been continuing long enough to work. He also recorded that the Plaintiff should re-start the use of amitriptyline
  26. On 7 November 2013 the Plaintiff had another consultation with Dr James Robertson. It was noted that the Plaintiff would try light duties at per injury hours. The clinical notes record that he had a cervical disc prolapse.
  27. Dr John Davis

  28. On 27 November 2013 the Plaintiff saw Dr John Davis at the request of his solicitors. At that point, Dr Davis noted that the Plaintiff had increased work to 4 hours per day, although subsequently had been terminated from employment. Dr Davis reported: < br/> His prognosis is for continuing pain, impairment and disability which will impact adversely upon all spheres of his life including various activities of daily living and on his ability to enjoy life’s general amenities.
    At this time he has been able to avoid any surgical intervention, although the likelihood of him undergoing a decompressive procedure in the cervical spine in the future can certainly not be ruled out at a cost of around $11,000.
    In the meantime he should be provided with further palliative treatments by way of physical therapies, twice weekly for the next 6 weeks, and thereafter there be further requirements for intermittent access to such therapies at least 10-12 times per year at a cost of $75.00 per visit.
    As a result of the accident he is unsuitable to undertake any work involving heavy lifting, repetitive or sustained flexion or semi-flexion, working in confined or awkward space, sustained work above head height, long periods of travel or any other activity which would require him to maintain static loading around his neck, back or shoulders, repetitive use of stairs, squatting, climbing ladders or walking on uneven ground.
    He is quite markedly disadvantaged on the open labour market as he has always undertaken work of a fairly heavy nature and will now have to avoid long periods of sitting as well as exposure to jarring or vibration. He is not suitable to return to work as a plant operator or crane driver, and one must be aware of the safety implications relating to his medications.
    I believe he has also developed an Adjustment to Injury Disorder and should be referred for counselling, say initially 12 sessions at a cost of $220.00 per session.
    Given his lack of transferable skills and degree of injury, I believe in reality it is unlikely that he will ever find further formalised employment.
  29. Associate Professor Mark Sheridan

  30. On 4 December 2013 the Plaintiff saw Associate Professor Mark Sheridan. He noted that the Plaintiff had persisting pain with significant paraesthesia and weakness in both arms. He also noted that his back and lower legs were getting problems. He ultimately stated that the Plaintiff was permanently unfit for work as a result of the injury and other health problems. He organised for him to have bilateral CT guided transforaminal injections at C6/C7 and would review him after this was done
  31. On 16 April 2014 the Plaintiff saw Associate Professor Mark Sheridan again, who noted that the Plaintiff’s arm symptoms were getting worse despite trying injections. He noted that he was becoming very frustrated with the pain. The Plaintiff was described as a good candidate for a C5-6 and C6-7 anterior cervical discectomy and fusion. He stated that he was happy to do this for him at Liverpool Hospital and the Plaintiff was subsequently placed on the waiting list for surgery
  32. An MRI obtained on 13 May 2014 reported that the cervical spine at C5/6 level there was a left lateral disc protrusion causing left foraminal narrowing and compromise of the left C6 nerve root. At C6/7 level a left paracentral disc protrusion encroaching the theca and associated left lateral disc protrusion encroaching the left C7 nerve root at the entrance to the exit foramen, MRI of the lumbar spine showed a posterior disc bulging at L4/5 without root compromise
  33. On 10 December 2014 the Plaintiff was further reviewed by Associate Professor Mark Sheridan. He noted that the Plaintiff had had an anterior cervical discectomy and fusion, which was uneventful. He noted that his arm symptoms had settled but there was still some discomfort in the shoulders and some symptoms of carpal tunnel syndrome. Movement of the neck was described as good. He organised for a repeat CT scan of the neck to make sure everything was settling and indicated that he would give a medical clearance for the Plaintiff to drive
  34. Following review on 28 January 2015, Associate Professor Sheridan noted that the Plaintiff was doing well following his neck surgery and the follow up CT scans showed that everything was healing in a good position. The main concern was persisting symptoms in his hands consistent with his previously known carpal tunnel syndrome. Associate Professor Sheridan stated that he had a good range of motion in his neck and that he was fit to return to a normal driving licence without restriction.
  35. The Plaintiff was again reviewed on 25 March 2015. On that occasion, it was noted that he continued to settle well with his neck surgery, however the carpal tunnel syndrome symptoms were bothering him particularly at night. Associate Professor Sheridan placed the Plaintiff on a waiting list to have this treated.
  36. On 12 October 2015 the Plaintiff was reviewed after carpal tunnel decompression has occurred, which was described as uneventful. It was noted that the Plaintiff was doing well, although he had some pain in his lower back and some paraesthesia and pain in his legs. Associate Professor Sheridan stated that he would be happy to review the Plaintiff in a few months’ time if the symptoms deteriorated.
  37. The Plaintiff described that after the operation in October 2015 he found that he got sensation back in his hands and his shoulders and neck were more relaxed. He stated that he still had some right sided neck pain, and would not lift his right arm higher than shoulder level. Main concern was described as pain in the lower back with paraesthesia and pain in his legs
  38. Dr Derek Lee

  39. The Plaintiff was seen on 6 August 2015 at the request of the insurer by Dr Derek Lee, occupational physician and injury management consultant. Dr Lee concluded that the Plaintiff had experienced improvement in his neck symptoms following cervical fusion in September 2014, but was now experiencing ongoing neck and shoulder pain associated with altered sensation to both upper limbs. In addition, he experienced ongoing lower back pain and was undergoing further investigation for cardiac symptoms. He recommended review by the neurosurgeon and assuming a diagnosis of carpal tunnel syndrome, that he would benefit from carpal tunnel decompression surgery. He concluded that maximum medical improvement may not be achieved until around 6-12 months following surgery of both carpal tunnels. He anticipated improvements in issues of upper limbs following surgery, and he should perform part time sedentary to light work with restriction of working b3elow shoulder height and frequent changes in position. Desp8ite this however, he stated that it was unlikely that the Plaintiff would be able to find suitable employment because he suffers from a number of conditions which make it difficult in working as a labourer.
  40. Dr Sheikh Habib

  41. On 23 September 2015 the Plaintiff saw Dr Sheikh Habib at the request of his solicitors. Dr Habib found that the Plaintiff’s current condition was caused partly by the incident at work on 13 May 2013. he noted that the Plaintiff had ongoing neck symptoms of pain, stiffness, and activity limitations which were permanent. He recorded that the Plaintiff obtained quite good relief from the radicular symptoms that were previously affecting his right upper limb. However the right carpal tunnel release did not significantly alter the symptoms of paraesthesia in his right hand which led to diminished grip strength and power which has not resolved. He found paraesthesia in both hands to be unrelated to the subject incident.
  42. Dr Habib found no indication of further cervical spine surgery or passive therapies necessary. Management remained with pain relief, a gentle exercise program at home and avoidance of unnecessary neck straining activities. In conclusion, Dr Habib found that the current neck condition was caused partly by the incident at work. In regards to his lower back complaints, it was his opinion these were mostly pre-existing and aggravated by central obesity
  43. Dr John Harrison

  44. The report of Dr John Harrison, Workers Compensation Assessor dated 4 August 2017 stated in summary:


    As a consequence of an accident at work when this man fell from a bench to the ground, he contused the back of his skull and he was left with some headaches, neck pain, lower back pain and he had an open laceration to his right leg that has gone on to heal satisfactorily. He struggled to get back to other than restricted duties with his labour hire employment company and he ultimately lost that job when he could not get back to his former and normal work activities again.

    His upper limb and neck problems were such that a neurosurgeon, Dr Sheridan, ultimately did a single level fusion relieving a lot of his right arm pain as an early beneficial experience to him and there has been an adjustment back since then leaving him still with some restricted neck mobility that continues to affect him with dysaesthesia in his upper limbs that was not significantly helped on the right side by a right side carpal tunnel decompression distally and he has ongoing problems that I have outlined in the report above.

    He was generally co-operative with me here today and had a reasonable recall for most events as I have recorded.
  45. Dr Harrison opined that early imaging study showed that there were pre-existing degenerative changes in the Plaintiff’s neck and back presumably present due to an injury experienced when the Plaintiff was working for Austral Precast. He found that the Plaintiff’s lumbar spine was affected by the previous injury, but not his neck. Overall 27% whole person impairment was assessed.

First Defendant’s Medical Reports
Associate Professor Jones

  1. Associate Professor Jones first examined the Plaintiff on 05 October 2016. In his report of the same date he stated:

    Mr Wayne Mervyn Randall as a conundrum. He has multiple pre-existing conditions including possible rheumatic fever with its chronic effects and coronary artery disease requiring a stent, he has diabetes with potential for complications and a mass around the right elbow which may be due to rheumatoid arthritis, although no definitive diagnosis could be made by this referee. There was a history of pyrexia and joint pain as a child which he thought was rheumatic fever and was treated with penicillin. He had hypercholesterolemia, hypertension, coronary artery disease and probable emphysema. However, Mr Randall said that he was fully employed until the accident on 13 May 2013. Subsequent to the accident he presumably developed neurological compromise ultimately having a probable decompression of the cervical spine with fusion and disc replacement has migrated.

    Mr Randall now has some neurological impairments which include possible neuropathy in the lower limbs and bilateral carpal tunnel compromise; the right having been decompressed. The majority of these conditions are unrelated to the accident of 13 May 2013, although perhaps as a best estimate made symptomatic as a result of the fall of 13 May 2013, It is my opinion that these severe multiple pre-existing conditions would have ultimately resulted in his being unable to work in a relatively brief time from the date of the accident and as a best estimate, this would have been within two to five years. I can make no estimate as to whether there would have been a necessity for cervical decompression and fusion were the accident of 13 May 2013 not to have occurred.
  2. Associate Professor Jones then recorded that the preliminary report of the incident recorded that the Plaintiff landed on his feet and the laceration of his leg was his only injury. This he stated, was of relevance as it demonstrates that the cervical impairments were pre-existing and the need for cervical treatment was unrelated to the incident on 13 May 2013. he further noted that the first reference to back pain was to the Plaintiff’s general practitioner on 5 June 2013 and that from 13 May 2013, the Plaintiff was diagnosed as having nerve damage to his right arm, and to a lesser extent in his left arm. In all, Associate Professor Jones opined that the majority of the Plaintiff’s continuing symptoms are associated with pre-existing degenerative disease and a multiplicity of constitutional and pre-existing diseases as listed in the report. He opined that the majority of the Plaintiff’s symptoms were due to degenerative arthritis and possibly complications of diabetes and possibly also of peripheral neuropathy
  3. He further stated that the treatment in the future is unrelated to the incident on 13 May 2013 and is due to the Plaintiff’s multiplicity of medical conditions. He also noted that his prognosis is significantly impaired and that there are many medicals issues which will compromise his future health
  4. In a supplementary report of 05 October 2016, Associate Professor Jones viewed copious documentation which was supplied to him for comment, including claim forms, medical reports, the report of the occupational health doctor dated 24 October 2013, surveillance reports and observations undertaken, as well as various radiological reports. He also viewed the report of Dr Davis of 27 November 2013, and the report of Dr Habib 24 December 2015, as well as the GP notes. He saw no reason to alter his previously expressed view.
  5. In a subsequent report following re-examination day dated 21 February 2018. Associate Professor Jones noted that the Plaintiff reported pins and needles around his legs and feet, difficulty sleeping, and pain in his neck and shoulders, and diminished movement in his neck. He noted that he could not sit for long periods of time but was generally independent in personal care. He added that his symptoms were all made worse by changes in the weather.
  6. On examination, Associate Professor Jones found the neck movements about 50% of normal in lateral rotation and forward flexion and extension and power in the arms was about 50-70% normal. In the lower limbs there was a dullness to pain sensation below the right knee and below the upper calf on the left. In conclusion, Associate Professor Jones stated that he confirmed that the multiple pre-existing conditions resulted in peripheral neuropathy, which was perhaps aggravated by the consumption of alcohol
  7. Subsequently on 11 July 2018 Associate Professor Jones viewed two surveillance videos dated 11 October 2013 and 16 October 2013 which showed a person walking normally using both arms equally and carrying an 9item of some weight in his right hand. It was noted that in the film of 21 February 2018, he was moving freely; initially holding a pack of x-rays in his left hand and swing his right arm freely. He later switched holding the x-rays to his right hand and also opined his car using his right hand. Professor Jones observed that this was contrary to his comment on 05 October 2016 where he stated that his right arm was “absolutely stuffed” and he could not use his right hand. In conclusion he stated
    The surveillance footage provided to me for my viewing revealed that Mr Wayne Mervyn Randall in films dated 11 October 2013, showed a person who, on observation, did not appear other than normal in ambulation and movement of his upper limbs. In films dated 21 February 2018 he was again capable of using his right hand. When I examined Mr Randall on 21 February 2018 there appeared to be 50-70% of normal power in the arms and hands. The video surveillance provided for my viewing would confirm my contention that the credibility of Mr Randall is severely in question and there were many issues of concern. I continued that “at this time, I am circumspect about accepting all those issues that are put to me by Mr Randall and despite his protestations I have some grave doubts”. There are therefore inconsistencies.
    My conclusion is that Mr Anthony Randall has degenerative disease and all the conditions which I have alluded to in my various reports and there is some concern regarding his credibility.
  8. Submissions

  9. The Second Defendant concedes that it is subject to a binding finding on causation as far as the neck is concerned. It disputed however that there was any injury to the arms and back and psychological injury.
  10. The First Defendant maintained that the Plaintiff’s account of the accident being that he fell on the concrete head first should not be accepted as it was inconsistent with the contemporaneous accounts the Plaintiff gave to other witnesses. It was submitted that in these circumstances the Court would find that what happened was that the Plaintiff fell of the counter cut his shin and landed on his feet.
  11. The First Defendant relies on the account which the Plaintiff is asserted to have given to Mr Young as recorded in the Register of Injuries on 14 May 2013 which says that “Wayne stepped back off the bench and grazed his shin on the corner of the bench before landing on the concrete floor on his feet.” In the statutory declaration on 10 September 2013, Mr Young stated:
    “Wayne informed me that he stepped back off the bench and fell of and grazed his shin. Wayne told me that he landed on his feet and that the graze on his shin was his only injury. When he showed me the graze there was no sign of the blood or did it look like he needed stiches”.
  12. The First Defendant made no submissions critical of the Plaintiff for trying to get back to work. Its Counsel accepted that that might be a basis of the Court to afford little weight to the statements of Mr Horan and Mr Docherty in the days following the incident. Mr Horan himself accepted that persons who suffer what they think might have been a relatively minor injury hop to get back to work quickly and tend to minimise injury. It was accepted that there might be a credible basis for the Plaintiff to minimise injuries to these people. The same might be said of the Injury Claim form which also was completed soon after the accident. The main argument by the First Defendant was expressed as follows:
    But it is an incredible position in my submission that he wouldn’t be telling the truth to the GP, particularly where he says he admits on his own account if he was suffering those injuries to his neck and back, he would have told the GP and one of the problems in this case that your Honour will have to grapple with is for a plaintiff who we all might feel some very legitimate sympathy for and who plainly had a fairly good work history, how on earth could there be a finding, and I ask rhetorically, that, if he had fallen 1.25 metres and landed on his head and suffered massive headaches, neck and back pain, that he would attend his doctor on 15, 16, 21 and 28 May and not utter a single word of those complaints. It’s just in my submission incredible and your Honour would make that finding in my submission in particular when it’s supported by a whole range of contemporaneous materials which undermine the Plaintiff’s account that he had the fall in the way he says.
  13. Consideration

  14. The First Defendant conceded that there was no evidence of Mr Young interacting with the Plaintiff between the writing of the two documents. Whether there is a difference between asserting that the Plaintiff referring to “landing on the concrete floor on his feet” and “he landed on his feet” was not explored. Mr Young’s version was not as a witness to the accident but as a narrator of what he was told and saw in the aftermath. When challenged as to his account Mr Young stated that at the time of the conversation other workers were still working and probably making a racket and pulling things down. He conceded that he “could have misheard a lot.” Although he did not accept that the Plaintiff said that he fell off the bench and fell on his head, he conceded that he can’t remember a conversation that he had yesterday let alone six years ago.
  15. The Plaintiff when asked about this said he did not recall saying this to Mr Young but he did not land on his feet. He maintained that Mr young was present when he had the fall and saw the way he was and whatever conversation he had with him, he was aware of the fact that he went head down and that was why he told everybody to pack up and leave early
  16. I am not satisfied that Mr Young witnessed the accident as the Plaintiff asserts. Had he done so there would have been no reason to seek an account from the Plaintiff as to what occurred. Beyond this the Plaintiff did not identify Mr Young as a witness to the accident in his Work Injury Claim Form completed 17 May 2013 but rather someone he reported the injury to.
  17. However I am not satisfied that the account recorded by Mr Young accurately portrays the account given by the Plaintiff as to him landing on his feet. Mr Young conceded that he would have misheard a lot around the time. As to the mechanism of the fall the First Defendant acknowledges that there is no other documents other than those referred to that record the assertion that the Plaintiff landed on his feet.
  18. The Plaintiff did identify a witness “Martin”, who he said was a co-worker and who after the accident jumped down to grab hold of him and then grabbed one of the lights and brought it back into the room. There was also a person he described as a South American person named “Lupo” who was working in the back in the coin room. Both persons were identified in the Injury Claim form completed by the Plaintiff. Mr Docherty gave evidence that he had no record of “Martin Lupo” working for with either “MPM Maintenance” or “Recruitment” and did not recall a Scottish person on site working for either. That is not surprising as the Plaintiff’s evidence was that they were two persons, one of Scottish and the other of South American decent. Be that as it may, the fact that the Plaintiff had to be pulled up by “Martin” as he asserts was not challenged and is more consistent with him having fallen on the concrete floor as opposed to having landed on his feet.
  19. The Plaintiff’s evidence was that he had bigger knocks in his life before this and he thought it would just dissipate and go away. He stated that he took it like a punch.
  20. Mr Horan noted that “Wayne contacted me the following day and he’s (sic) GP said he needed the day off but would be fit to return the following day.” In fact the Plaintiff didn’t attend on his GP until two days after on 15 May 2018. On that occasion there is no recorded reference to the Plaintiff reporting injury to his neck or back. Although the Plaintiff said that to the best of his recollection he complained to Dr Andrew Robertson about a headache, his neck and his back, I cannot be satisfied that he did. It seems to be unlikely that the Plaintiff mentioned such a matter and Dr Andrew Robertson omitted to record it bearing in mind his usual practice and the protocol he referred to. The Plaintiff had an earlier back injury as noted and yet the first certificate of capacity recorded following the subject accident recorded that there were no pre-existing factors relevant to the condition.
  21. Nor do I accept the Plaintiff’s account of the restrictions of Dr Andrew Robertson’s practice prevented him from ordering radiological tests and medications. There is evidence that Dr Andrew Robertson did in fact prescribe medications to the Plaintiff and subsequently radiological tests. There was a follow up consultation with Dr Andrew Robertson on 16 May 2013 when again there is no mention recorded of the back and neck in the clinical notes. The Plaintiff was however certified fit for some lighter duties work from that date.
  22. I have earlier referred to the Plaintiff’s experience in performing light duties at MPM Access working on elevated platforms and shredding paper.
  23. Dr Pillemer, Dr Lee, and Associate Professor Jones obtain a corresponding history of the Plaintiff undertaking such work and its impact. Dr Harrison records that the Plaintiff was given a certificate off work and then a constrained certificate of fitness to do part time light work whereupon he had to shred paper. Dr Habib obtains a history of the Plaintiff working 2 hours a day for 5-6 weeks some two months after the fall which was terminated as no further select duties were available. Dr Davis gets an account that after around 2.5 months the Plaintiff returned to work on restricted duties and commenced on a graded programme working 3 hours a day, 5 days per week “shredding paper” which was increased to 4 hours per day before being was terminated.
  24. The Plaintiff saw Dr Andrew Robertson on 16, 21 and 28 May 2013 however as I have noted there is no recorded mention of back or neck complaints.
  25. On 21 May 2013 there is a record of Dr Andrew Robertson recording “Has done hard labour his whole life and now his body is failing.” In evidence Dr Andrew Robertson agreed that a person presenting with a laceration could not be described as a person whose body is failing. Dr Robertson conceded that it seems that he did not ask the Plaintiff what parts of his body were failing.
  26. On 28 May 2013 the Plaintiff was recorded as doing light duties the previous week for 10 Hours and that he had been having issues with his employer over his claim. Dr Andrew Robertson records that he should not be doing further demolition work until the wound is fully healed due to the risk of further injury to the area.
  27. I was in the clinical notes of 5 June 2013 that Dr Andrew Robertson records that the Plaintiff informed him that he was having neck pain since the accident, which was worse on the right side and with movement and he and lumbar pain worse on the right with pain radiating from his laceration which travels up the side of this thigh. It was in those circumstances that Dr Andrew Robertson ordered plan x-rays of the right leg an CT scan of the lumbar spine.
  28. On 13 June 2013 when the Plaintiff saw Dr James Robertson who recorded that “He described the fall he had, which was from a counter onto his head. He still has the lump on the left side of the head.” Even if this was a record of something the Plaintiff told Dr James Robertson there is nothing to indicate this was inaccurate and no lump was present. Nor was there any suggestion that it could have arisen from circumstances other than the fall. The notation was made approximately 1 month after the injury.
  29. I accept therefore that it is more likely that the Plaintiff did hit his head in the course of the fall although I cannot determine whether this was the first part of his body to strike the concrete surface.
  30. Whatever the nature of the injuries, the one thing that is not in doubt is that the Plaintiff went home early and took himself to the hospital waiting for a significant period of time for treatment. There is no record of the Plaintiff complaining of an injury to the head neck or back although the purpose of triage to prioritise treatment between various categories of patients. The assessment of the injury sustained based on the clinical notes of Dr Andrew Robertson are that he sustained a laceration and wound. This does not accord with the description provided by Mr Young of a graze and a cut with no sign of blood or a bump as was said to be relayed to Mr Horan.
  31. It was put to the Plaintiff that when he saw Dr Lee in August 2015 he told him that when he saw Dr Andrew Robertson “the day after the incident” that he complained of neck pain and pain down both arms. The Plaintiff could not recall such a conversation. Certainly Dr lee records such a history. It was next put to the Plaintiff that when he saw Dr Habib on 23 September 2015 he told him that he didn’t report headache and neck pain to Dr Andrew Robertson on 15 May 2013 thinking the head bump would settle. The Plaintiff stated that he could not recall. Dr Habib records such a conversation. It was further put to the Plaintiff that when he saw Associate Professor Jones he gave a history of shortly after the incident seeing Dr Andrew Robertson and complaining of a bad headache and bad pain in the neck and a bad right leg. The Plaintiff stated that he could not recall the conversation. Associate Professor Jones records such a history.
  32. At the consultation with Dr Andrew Robertson on 15 May 2013 the Plaintiff was noted to have been affected by alcohol.
  33. In the circumstances I can have little reliance on the Plaintiff’s recollection of the conversations that he had with Dr Andrew Robertson on 15 May 2013.
  34. What is not in issue is that at that time the Plaintiff had ceased work and when he resumed work he complained of his body failing to Dr Andrew Robertson on 21 May 2013
  35. The Plaintiff asserted in his evidence that on both 21 May 2013 and 28 May 2013, he complained about his neck and his back although, he stated that the focus of those visits were on his leg. In cross examination however he stated that he could not recall the consultations although he would have said something. The Plaintiff could not provide a reason as to why this was not recorded although he stated that he had, had “bigger knocks” in his life than what occurred in the subject accident, and he thought it would just dissipated and go away. As noted Dr Andrew Robertson did not record what the Plaintiff meant by the words he recorded as to the Plaintiff’s body failing. There is a correlation with the Plaintiff resuming light work and complaining of neck and back pain and complaining that his body was failing as recorded in Dr Andrew Robertson’s notes of 21 May 2013.
  36. There is no cross examination either as to the duties the Plaintiff performed as part of light duties, the difficulties he encountered, the circumstances in which the duties came to be changed, the fact that they were changed or the timing when this occurred.
  37. Whilst I accept that there were shortcomings in the Plaintiff’s reliability this particular evidence this unchallenged evidence was neither incredible nor unconvincing. Now was it directly contradicted by other evidence. In the circumstances I accept it. I am satisfied that the Plaintiff was anxious to return to work. There was evidence that at the time he was short of funds having stated that at the date of the accident he had no money something that was reiterated to Dr Andrew Robertson. I am satisfied that complaints as to the Plaintiff’s neck and back did not feature prominently if at all in the initial medical consultations he had with Dr Andrew Robertson. I accept that at the time the Plaintiff was hoping that they would dissipate and he was anxious to return to work. They did not as experience with light duties demonstrated.
  38. On the balance of balance of probabilities I am therefore satisfied that the Plaintiff did fall in the subject accident sustaining lump to his head and did injure his neck and back at the time.
  39. Arms

  40. The Plaintiff described how weeks after the accident he had physical pain comprising pins and needles, numbness and no feeling sensation in his arms. Despite this he acknowledged that he was able in December 2013 able to manoeuvre a car door using his right arm, adjust his seat belt using both arms, manoeuvre a gate using both arms and wind a window using both arms because he had to. He said that he could carry a bit and manoeuvre lightweight bags using his right arm because he had to as well as put an esky in the back seat of a car. Following surgery in October 2014 he described how he got sensation back into his hands felt his shoulders were more relaxed and his neck was more relaxed. He still was not able to lift his right arm any higher than shoulder level.
  41. Associate Professor Sheridan diagnosed mild bilateral carpal tunnel syndrome to be expected with his condition. He noted significant paraesthesia and persistent carpal tunnel syndrome and weakness in both arms. In December 2014. Associate Professor Sheridan noted that the his previous arm symptoms had settled and he still had some discomfort in his shoulders and some symptoms of carpal tunnel. Although the Plaintiff had decompression surgery the evidence recorded by Dr Habib and Dr Harrison is that the dysesthesia in the upper limbs was not significantly helped on the right side by a right carpal tunnel decompression distally. Dr Habib found the paraesthesia in the hands to be unrelated to the subject accident. Associate Professor Jones found that the neurological impairments including neuropathy in the lower limbs and bilateral carpal tunnel was unrelated but “perhaps made symptomatic by the accident.”
  42. On balance I accept the findings of Associate Professor Sheridan who not only treated the Plaintiff but had opportunity to interact with him frequently during the course. The findings of Associate Professor Jones acknowledge that the accident could have made the Plaintiff symptomatic.
  43. Despite the surveillance evidence I accept that the Plaintiff did have the discomfort he described to his arms. I do not regard the activities shown in the videos which the Plaintiff in any event conceded he could do as inconsistent with his complaints. The activities displayed were limited. In respect of the third video the Plaintiff gave evidence of having at one point to stop and lean and bend his back; a matter which was not recorded although there was a break in the video recording. Beyond that since the first two surveillances videos the Plaintiff has undergone significant surgery aimed at relieving his symptoms. Overall I accept that from time to time he continues to suffer from discomfort as he describes.
  44. Back

  45. In relation to the Plaintiff’s back, the Second Defendant contended that the complaint in his regard was really an “add on” rather than a source of the particular complaint. Reference was made to the fact that in the Plaintiff’s evidence it did not feature prominently and it was not referenced in the GP notes until 5 June 2013. It was asserted that the only person who dealt with the back was Dr Habib, who considered that the injury was mostly pre-existing and aggravated by central obesity.
  46. The First Defendant acknowledged that whilst Associate Professor Jones and Dr Davis both discussed the back pain, when one reads the totality of the media reports these are degenerative changes in respect of which there is insufficient evidence for the Court to be able to conclude that they are casually linked to the incident.
  47. In the Plaintiff’s further written submissions in reply dated 11 March 2019 attention was drawn the account in relation to the back recorded by various doctors.
  48. Dr Roger Pillemer (admitted only against the first defendant) saw the Plaintiff on the 11th of July 2013 where he was complaining of neck pain and “significant discomfort in the lower back region which goes as high as 8 out of 10 and is constantly present. There is intermittent radiation down the right leg and into the right foot”. Whilst Dr Davis accepted the complaints he added that although the Plaintiff had ongoing symptoms in his low back they were not worrying him as much as the neck and there were no clear signs of neurological involvement in the lower limbs.
  49. Dr Sheridan 24 September 2013 notes that the Plaintiff is complaining of some lower back pain and stated that “all these areas fit well with his injury and ongoing symptoms”. Similar complaints were made at his attendance on the 7th of December 2013 post surgery. On 14 October 2015 Dr Sheridan records that the Plaintiff’s main concern was pain in the lower back and some paraesthesia and pain in his legs.
  50. Dr Sam Perla on 24th of October 2013 found an examination that day that the lower back was not too bad. On examination the range of active movement was described as normal as was leg raising. The report noted that in his view there was an aggravation of pre-existing degenerative condition.
  51. On 27 November 2013 Dr Davis. Noted the Plaintiff to be ambulating with antalgic gait. He diagnosed him as having a lumbar and cervical disc lesions together with an aggravation of pre-existing degenerative changes. He stated:
    “Prognosis is for ongoing pain impairment and disability which will impact adversely upon all sphere of his life including activities of daily living and on his ability to enjoy life’s general amenities”.
  52. Dr Davis diagnosed disc injuries to the cervical and lumbar spine as well as soft tissue trauma to the in the thoracic spine.
  53. On 13 May 2014 an MRI of the lumbar spine showed a posterior disc bulging at L4/5 without root compromise.
  54. Dr Lee on the 6th of August 2015 noted that the Plaintiff was still complaining of his lower back. He diagnosed a degenerative lumbo sacral spine.
  55. Dr Habib on 24th of September 2015 noted that he had pre-existing but asymptomatic degenerative changes in his back which he considered had been strained but considered to have resolved. He added that he considered his current low back complaints to be mostly pre-existing aggravated by the central obesity.
  56. Associate Professor Jones on 5 October 2016 opined that the Plaintiff suffered degenerative disease unrelated to the accident.
  57. Overall I am satisfied that the Plaintiff did suffer some back symptoms and associated lower limb pain and restriction of movement arising from an aggravation of a degenerative condition following the accident. I accept that the Plaintiff’s condition has improved. The most recent evidence does not indicate that he continues to suffers associated lower limb symptoms. Although the Plaintiff is recorded on 12 October 2015 by Dr Sheridan as having his “main concern” about the back and paraesthesia and pain in his legs he was told that if he continues to get worse and if his walking deteriorates then he should be reviewed. There is no evidence as to this occurring.
  58. Work Capacity

  59. The Second Defendant argued that the in the context of the Plaintiff’s neck condition there would be a greater range of activities that the Plaintiff could undertake of a lighter nature. Reliance in this regard is placed on the views expressed by Dr Perla that on October 2013 the Plaintiff was fit to perform selected duties for his pre injury hours and potentially most of his normal duties 4 to 6 weeks thereafter although this would be better determined by an Independent Medical Expert.
  60. Dr Perla’s report was obtained in a context where the Plaintiff was clearly anxious to return to work and actively involved in physiotherapy. Despite the optimism expressed at the time this was short lived as events soon after revealed.
  61. As noted earlier Dr Davis a month later reported the Plaintiff was not suitable to return to work as a plant operator or crane driver and there are safety implications relating to his medications. Overall he opined that his lack of transferable skills and degree of injury meant that it was unlikely that he would find further formalised employment.
  62. Dr Sheridan reported that on 7 December 2013 that he was permanently unfit for work as a result of his injuries and other health problems.
  63. Dr Lee stated that the Plaintiff might be able to perform part time sedentary work with restrictions of work below shoulder height and frequent change of position. He noted that considering all the Plaintiff’s medical conditions it would be unlikely that the Plaintiff would find suitable employment.
  64. Notwithstanding his opinion as to the Plaintiff’s back Dr Habib stated that the Plaintiff was unskilled and permanently unfit for any employment for which he is qualified. Dr Habib noted that the suggestion that the Plaintiff would be able to resume his pre injury physically labouring duties was “not quite up to the mark” and “obviously wrong.”
  65. The Plaintiff has done heavy labouring work all his life largely of an unskilled nature. He has obtained qualifications as a driver of heavy vehicles, a heavy crane and dogman’s certificate. He is now aged 61 years. He has had minimal education having left school in year 9.
  66. I am satisfied that as a consequence of the injuries he sustained in the subject accident he had lost his earning capacity however an issue still arises as to the likely duration of that incapacity bearing in mind his other ailments. This is discussed below.

Schedule of Damages

  1. Both the Plaintiff and each of the Defendants submitted schedule of damages.
  2. A claim was advanced against each Defendant in respect of economic loss.
  3. The Plaintiff’s claim also comprised non-economic loss together with future treatment expenses against the First Defendant. Having regard to my findings I assess the damages in each case as follows.

Damages – First Defendant
Non-Economic Loss

  1. Non-economic loss is exhaustively defined as one or more of:
    1. Pain and suffering,
    2. Loss of amenities of life,
    3. Loss of expectation of life,
    4. Disfigurement
  2. The Plaintiff’s evidence was that he has since the accident he has not been able to get back to recreational activities having previously played touch football golf, running and jogging. There is also evidence that he enjoyed social tennis and regular fishing. He gave evidence of having worked in physical occupations which he previously undertook.
  3. The Plaintiff described a scar to his leg form the laceration.
  4. I have earlier described the evidence of the Plaintiff suffering pain to his arms, shoulder, neck back head and right leg. The Plaintiff said that he took medication that relieved the pain for a while but his symptoms increased. He is prescribed Panadeine Forte and Osteo for pain.
  5. The Second Defendant submitted that no award for non-economic loss was appropriate as the matter fell below the threshold in s 16(1) of the 2002 Act.
  6. The Plaintiff submitted that the matter was 32% of a most extreme case.
  7. I would assess the matter as falling at 27% of a most extreme case being an amount of $63,500
  8. Domestic Assistance

  9. The Plaintiff’s schedule advances a claim for 2 hours domestic assistance at commercial rates.
  10. Dr Pillemer in his report of 11 July 2013 noted that the Plaintiff can manage in his self-care although he needed assistance in removing and replacing his boots. Dr Davis in a report dated 27 November 2013 gave evidence of the Plaintiff requiring domestic care services of 6 hours per week when domiciled in his own home. However he noted that he was residing in a men’s refuge and had no real requirement to undertake any domestic chores. Dr Lee in a report dated 6 August 2015 noted that the Plaintiff was independent in personal care. Dr Habib referred to the Plaintiff being mostly independent in his personal care and hygiene though with some difficulties. He noted that he gets some help for the care of his bed sitter. . Overall he supported a need for 2 Hours a week domestic assistance for cleaning. Dr Harrison also noted that the Plaintiff was living in Housing Commission rental accommodation but had to hire someone to help him with housework out of the limited money he was receiving as he could not manage all of the task himself and he had little family support.
  11. Associate Professor Jones in his report dated 5 October 2016 stated that he believed that the Plaintiff was independent in personal care and independent in activities of a domestic nature but his degenerative arthritis has precluded him from undertaking heavier household chores for which he estimates that he requires two hours per week. In a report of 21 February 2018 Associate Professor Jones obtains a history that the Plaintiff is generally independent in his personal care although he recalled that someone cuts his toe nails. He also noted that the Plaintiff used domestic assistance for an hour twice a week for an hour. In a later report of 11 July 2018 he confirmed again that the Plaintiff paid someone for two hours a week to undertake housework and that he needed help with his hair. He also recorded that the Plaintiff stated that he cannot pick up items when he does shopping and people help him.
  12. The Plaintiff gave evidence of living in a bedsit and paying someone to do the cleaning for four to two hours a week at $20 an hour cash in hand until he was unable to pay. Whilst the Plaintiff stated that he had problems with “the small block” he is living in he did not identify what the source of these problems were. No evidence was adduced that his current living arrangements would be varied at some time in the future nor any intention to access commercial services. The Plaintiff resides alone having been estranged from his wife and the circumstances in which he discontinued the previous arrangements were when he ran out of funds from his superannuation and TPD payments.
  13. No schedule of rates was provided on which future commercial care could be calculated and no submission was advanced beyond the claim in the Plaintiff’s schedule. Further the evidence does not identify the nature of the need the Plaintiff says he has nor plan to engage such services.
  14. On balance I accept the view of Associate Professor Jones and I am not satisfied that the Plaintiff has demonstrated how any claim in the future arises from the subject accident.
  15. Out of Pocket Expenses

  16. I was informed that there was a valid Medicare notice for $6465 which ”may well be in dispute” beyond the amount of out of pocket expenses paid by the First Defendant in the sum of $17,513.03. Ultimately the Medicare amount was not the subject of further submissions or evidence.
  17. The amounts paid by the Second Defendant were acknowledged as not being recoverable. So far as medical expenses in the future he said that he takes Panadeine Forte and Osteo regularly. 418 He was not cross examined on this. He has not seen a doctor or medical specialist for treatment for some time and gave no evidence as to any intention to do so. Nevertheless some allowance is appropriate recognising the potential for circumstances to change.
  18. I propose to allow a buffer amount of $15,000.
  19. Economic Loss

  20. So far as economic loss is concerned the Plaintiff’s evidence was that he has contacted a number of people that he has worked for in the past however his position is untouchable. He says he still gets offers from time to time and were he fully fit he would be working on tunnels, operating trucks, heavy machinery, cranes or “whatever was the go”.
  21. In terms of wage loss the Plaintiff’s schedule claimed a past wage loss of $700 per week based on the workers’ compensation payment figure in Exhibit C.
  22. The Second Defendant argued that that rate was not reflective of the Plaintiff’s earning capacity as it is reflective of the statutory workers’ compensation payments and doesn’t take account of the actual earnings reflected in the Plaintiff’s income tax returns. Those returns showed that the Plaintiff was declaring earnings between
    1. 2009-2010 of $675.40 net;
    2. 2010-2011 of $632.34 net;
    3. 2011-2012 of $212.06 net;
    4. 2012-135 2013 of $523.73 net.
  23. There was some suggestion that the figure in the 2012 year was brought about by the need of the Plaintiff to attend to his wife who was ill.
  24. The Plaintiff gave evidence of receiving further income which he did not declare. He estimated that the non-provision of tax certificates occurred 6 or 7 times in the last 15 years. Overall he stated that he worked between 5 and 7 days. The Plaintiff was not challenged on this evidence. he conceded that his earnings were not as high as his hourly rate would indicate.
  25. Counsel for the Second Defendant submitted that the certificates issued by the general practitioner showed that the Plaintiff was fit to perform selected duties to 40 hours a week which changed in June 2013 to 15 hours a week and in October 2013 Dr Perla found the Plaintiff fit for full time selected duties. It noted that Dr Habib had a similar view.
  26. The Plaintiff’s Senior counsel submitted:
    More importantly, your Honour – and it is a significant matter and I raised to raise it when addresses were being made – there is an important Browne v Dunn point to be made here. There is no cross examination of the plaintiff at all on his capacity; nothing challenging his assertion that he would have worked to age 70; nothing challenging his assertion that some matters didn’t get into his tax return. It’s clear they didn’t, because he identified an employment in the very year of his injury which doesn’t appear in his return – and it’s not surprising, as I say in my submissions, that because the group certificates come out at the end of the year and the plaintiff is moving around doing various things, that some of those group certificates didn’t make it.
    It is not surprising also that he may be paid cash on occasion. That is not to say that tax wasn’t paid. Nobody in this day and age is likely to put somebody on as a paid worker without either taking out PPS payments or alternatively, giving somebody a group certificate because you’re just not likely to get away with it. The reality is that it doesn’t matter what form – whether it’s cash, cheque or otherwise – he gets paid, but he’s always entitled to assume that the employer has taken the tax out at source.
    The reality is, in our submission, the tax returns don’t fairly reflect his income and given that his uncontested evidence – his uncontested evidence; they6 didn’t cross examine him one little bit about this – is that he was a hard worker. He went from job to job; he’s recorded as working – even by Dr Jones, I think – at 98% of the time he’s working, and even taking the hourly rate at which he was employed at this job in the Pitt Street Mall, it was $36 an hour over a 38 hour week. That’s over a thousand bucks a week, in any event – and you’d expect that.
    So your Honour, in our respectful submission, your Honour has to take a broader view than just the tax returns or anything else and accept that this man was a hardworking man. He was earning at least the sum we set out in our schedule of damages. I say this because I rely upon the rule in Browne v Dunn – it is an important rule. If they choose not to cross examine him; if they choose not to challenge him they bear the consequences. This is still a court of people opposing each other. If they choose not to challenge, they wear the consequence and your Honour, they certainly didn’t challenge him here.
  27. The amount paid by way of workers’ compensation payment does represents the income foregone as a result of the accident. Nor is the tax treatment of the Plaintiff’s income conclusive.
  28. I accept that the income declared does not represent the Plaintiff’s earning capacity at the time of the accident. Exercising the caution required in a case such as this I would accept the figure of $700 net as representing the Plaintiff’s earnings for the purposes of calculating past economic loss.
  29. The Plaintiff was off work from 12 May 2013 to 16 May 2015.
  30. The Plaintiff’s schedule of damages seeks economic loss from 13 May 2103 to date.
  31. The First Defendant’s schedule of damages accepts payment of past economic loss for 7 working days from 13 May 2013 to 21 May 2013.
  32. The Second Defendant’s schedule accepts that from 16 May 2013 until his operation on 31 October 2014 the Plaintiff had a capacity to earn in suitable employment not less that his pre-injury employment earnings from 16 May 2013 until the date of his operation on the 31st October 2014. Thereafter it asserts that the Plaintiff was unfit for a period of time following his surgery but accepts that this would be until examined by Associate Professor Jones on 5 October 2016. From this date the Second Defendant would allow a reduced capacity of $150.
  33. The Second Defendant asserted that the Plaintiff’s general medical condition unrelated to the injuries for which he claims damages results in a real likelihood that he would not have been able to engage in employment for which he was trained until the age of 67. In this schedule the Second Defendant argued that the correct method for assessing loss of earning capacity was not reduce working life but increase the vicissitudes and that 20% was the appropriate amount. Ultimately the First defendant argued that you could either reduce the period of his future loss in accordance with Associate Professor Jones report or increase the vicissitudes. The Second Defendant by in large adopted these submissions. noting that Associate Professor Jones was not required for cross examination and no responsive evidence has been adduced by the Plaintiff.
  34. Associate Professor Jones’ view earlier referred to was maintained in his subsequent report of 11 July 2018.
  35. The Plaintiff gave evidence that whilst he was working for Veolia as a garbage truck driver he had a heart problem that resulted in a stent being inserted and that he went back to work the following week. He gave evidence that he developed what he believed was emphysema being a heavy cigarette smoker. he has problems with sleep apnoea but cannot afford the aids. He stated that in the last few years he developed diabetes. He states that he has test every few years and is doing good. Dr Harrison recorded that this was diagnosed in 2014.
  36. The Plaintiff also stated that he had a planed to continue to work as long as he could but recognising that he may not be able to continue in advanced years then go and utilise his other tickets that he had accumulated to operate cranes. Subsequently however he asserted that his licences has all been cancelled on medical grounds. He said that he had a car licence but has to do a medical every year but was advised that he could not be able to drive trucks again “because you got to climb up and down, do three pointers in and out.”
  37. The Plaintiff’s counsel submitted:
    Dr Jones forms a view that he would have been symptomatic within two to five years in any event because of these conditions. But he sets out no basis upon why this should be the case. It’s interesting that he forms this view upon a basis of multiple conditions, many of which were consequential or subsequently to this injury. For example, the diabetes which was no diagnosed until this man had grown unfit and fat after the event. That appears in the notes I think the following year in 2014 where they note that he’s put on weight and he may be diabetic.
  38. The Plaintiff’s criticism cannot be accepted. Associate Professor Jones is a Consultant Physician in Rehabilitation Medicine. His reports were not objected to or admitted on a limited on any basis. Nor did the Plaintiff seek to challenge that view expressed either by seeking to cross examine Associate Professor Jones or calling further evidence.
  39. Whilst the Plaintiff has drawn attention to the Plaintiff’s recorded weight gain after the accident his evidence was that he lost weight and then gained it but didn’t know how much he weighed at present. There is no evidence as to how this arose or how it relates to his diabetes. Nor does it explain the emphysema sleep apnoea and hypertension which the Plaintiff suffers along with his pre-existing heart disease. His evidence was that he was prescribed a machine to breathe which he did not pursue resorting to instead to alcohol. Beyond that the evidence supports that he suffers from osteoarthritis and had pre-existing degeneration as described.
  40. In the assessment of damages the Court is required to take account of hypothetical situations past present and future effects of physical injury or degeneration and the chance of future or hypothetical events occurring consistent with what was said in Seltsam Pty Ltd v Ghaleb. This requires an estimate of the likelihood that the alleged hypothetical past situation would have occurred and an estimate of the likelihood of the possibility of alleged future events occurring.
  41. In my view the Defendants have discharged the evidential burden. It was for the Plaintiff to call evidence supporting its contentions particularly if it contended that notwithstanding these conditions the Plaintiff would have been able to still work.
  42. The evidence of Dr Lee in fact provides some support for Associate Professor Jones’s opinion noting that the Plaintiff suffered osteoarthritis, gout in both feet possible cardiac issues, and breathing difficulties. Associate Professor Sheridan in his report of 7 December referred to certifying the Plaintiff permanently unfit for work as a result of his injury and “other health problems.” The Plaintiff himself recognised that he would not be able to continue work as a labourer into the future and had proposed to use his other operating tickets which he acknowledged have been cancelled for undisclosed medical grounds.
  43. Beyond that there is evidence of poor management of some of the Plaintiff’s medical conditions by not taking regular medication and continuing smoking and alcohol consumption. Indeed as the evidence demonstrates a number of the conditions are not to be regarded as hypothetical. It is apparent that the Plaintiff general health was poor and I am satisfied that for reasons unrelated to the accident the Plaintiff’s work capacity would have been well ceased by now.
  44. It is appropriate therefore to take into account that the Plaintiff’s working life would have been cut short in any event due to the multiple conditions to which reference has been made. I accept that the Plaintiff’s earning capacity would more likely have diminished progressively and Associate Professor Jones’ opinion is a best estimate. In the circumstances doing the best I can I propose to proceed on the basis of allowing the equivalent of five years loss of earnings at $700 net per week for five years. This comes to a total of $182,000.
  45. To this I would add loss of superannuation at the rate of 11% being an amount of $20,020.
  46. As for the future I am satisfied that the Plaintiff would not have worked in any event as his non-accident related ailments would have prevented him from working irrespective. Hence I would not allow any sum for future economic loss.
  47. On this basis the calculation for economic loss damages is $202,020.

Damages-Second Defendant

  1. The Plaintiff has suffered a degree of permanent impairment as a result of his injury of at least 15%. On the evidence it is in fact greater. He thus has an entitlement of work injury damages under Division 3 of Part 5 of the 1987 Act. Those damages are calculated by reference to past and future economic loss only and the basis of assessment is the same as the basis for assessment under Part 2 of 2002 Act. Drawing on my previous findings, I assess the work injury damages as $202,020.
  2. The Second Defendant is entitled to a credit for the amount paid by way benefits under s 151Z(1)(d) of the 1987 Act.
  3. The First Defendant accepts that the only indemnity that the First Defendant has is pursuant to s 151Z(1)(d) of the 1987 Act. Specifically both Defendants accepted that there was no entitlement to recovery beyond the weekly compensation paid.

Damages-First Defendant-s 151 Z 1987 Act

  1. The Second Defendant has pleaded s 151Z of the 1987 Act. But for the provisions of Division 3 of Part 5 of the 1987 Act the First Defendant would have been entitled to recover 15 % of the damages under the 2002 Act from the Second Defendant. By the modifications under the 1987 Act it would only be entitled to recover 15 % of the work injury damages. It is entitled to the benefit of a reduction in the damages payable to the Plaintiff in respect of the difference between the two. My calculations are as follows:
    1. The total of the civil liability damages is $280,520 of which 15 % is $42,078.
    2. 15% of the work injury damages is $30,303.
    3. The s 151Z(2) deduction is therefore $11,775.
  2. The damages therefore payable by the First Defendant to the Plaintiff is $280,520 less $11,775, being $268,745.
  3. I do not accept that payments made to the Plaintiff by his employers that pursuant to a s 66 of the 1987 Act they should be offset again the amount that the Plaintiff would otherwise be entitled under s 16 of the 2002 Act. Such entitlements are assessed on a basis that is not incorporated in the definition of non-economic loss is s 3 of the 2002 Act. The First Defendant in advancing such a submission conceded that there was no authority to support such a course.

ORDERS

  1. Accordingly for the reasons given I make orders as follows:
    1. In grant leave to enable the commencement of proceedings pursuant to s 151D of the 1987 Act.
    2. Verdict and Judgment for the Plaintiff against the First Defendant in the sum of $268,745
    3. Verdict and Judgment for the Plaintiff against the Second Defendant in the sum of $202,020.
    4. The Second Defendant is to receive an indemnity in respect of the sum of $16,339.09 paid to the Plaintiff pursuant to s 151Z(1)(d) of the 1987 Act.
    5. Verdict and Judgment for the Second Defendant against the First Defendant on the Second Defendant’s cross claim in the sum of $171,717.
    6. I defer entry of final orders to enable the parties to check my calculations and to submit any argument as to costs to 15 June 2019.
    7. I grant liberty to the parties to submit agreed short minutes to my Associate before 15 June 2019 to enable orders to be made in chambers in the event agreement is reached.

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