Alan Donald v Rail Corporation of New South Wales (No 11)

[2016] NSWSC 1897

Supreme Court

New South Wales

Medium Neutral Citation:	Alan Donald v Rail Corporation of New South Wales (No 11) [2016] NSWSC 1897
Hearing dates:	20; 21; 22; 23; 24 June 2015; 2; 3; 4; 5; 9; 10; 12 November
Date of orders:	23 December 2016
Decision date:	23 December 2016
Jurisdiction:	Common Law
Before:	Campbell J
Decision:	See [166]
Catchwords:	TORTS – negligence – workplace incident – TNT v Christie - heavy labouring work in maintenance of Sydney railways - worker suffered back injury whilst jackhammering – system of task rotation - whether evidence as to injury true or fabricated DAMAGES – torts – negligence – workers compensation – damages awarded
Legislation Cited:	Civil Liability Act 2002 (NSW) Law Reform Miscellaneous Provisions Act 1946 (NSW) Work Injury Management and Workers’ Compensation Act 1998 (NSW) Workers’ Compensation Act 1987 (NSW)
Cases Cited:	Astley v Austrust Limited [1999] HCA 6; 197 CLR 1 Bankstown Foundry Pty Ltd v Braistina [1986] HCA 20; (1986) 160 CLR 301 Bostik Australia Pty Ltd v Liddiard & Anor [2009] NSWCA 167 Czatyrko v Edith Cowen University [2005] HCA 14 McLean v Tedman [1984] HCA 60; (1984) 155 CLR 306 Paris v Stepney Borough Council [1951] AC 367 RTA v Dederer (2007) 234 CLR 330; [2007] HCA 42 TNT Australia Pty Ltd v Christie (2003) 65 NSWLR1; [2003] NSWCA 47 Vincent v Woolworths Ltd [2016] NSWCA 40 Wyong Council v Shirt (1980) 146 CLR 40 at [47] – [48];
Category:	Procedural and other rulings
Parties:	Alan Donald (Plaintiff) Rail Corporation of New South Wales (First Defendant) Staff Innovations Pty Ltd t/as Bamford Family Trust (second defendant)
Representation:	Counsel: DR Campbell SC with S Longhurst (Plaintiff) RJ Burbidge QC with A Casselden (First Defendant); M Windsor SC with R Perla (Second Defendant) Solicitors: Acorn Lawyers (Plaintiff); Hicksons (First Defendant); Moray & Agnew (Second Defendant)
File Number(s):	2010/349997

judgment

1. The plaintiff (Mr Donald) claims damages for personal injury allegedly suffered in the course of his employment in May and June 2008. This was labouring work involving jack hammering, the exertion of effort and strain in manhandling railway sleepers, and moving bags of rubble produced by the jackhammering. He claims to have suffered severe injury to his back.

2. The defendants are Rail Corporation New South Wales (Rail Corp) and Staff Innovations Pty Ltd (Staff Innovations). Mr Donald was a direct employee of Staff Innovations who hired his labour to Rail Corp to work under its supervision and system of work in maintaining the City Circle of the Sydney Metropolitan Railway Line.

3. Although Mr Donald has been paid workers’ compensation for his injuries and their consequences since around August 2008, almost everything is said to be in issue according to the joint memorandum of issues in dispute, prepared by the legal representatives of the parties and filed on 27 April 2015. It is easier to say what is not in dispute: each defendant was an incorporated company; the plaintiff was employed by Staff Innovations; his labour was hired to Rail Corp; and he worked under Rail Corp’s supervision in maintenance work involving the removal and installation of sleepers.

4. Staff Innovations have since been deregistered as a company and orders were earlier made substituting Workers’ Compensation Nominal Insurer as second defendant.

5. The defendants have cross-claimed against each other seeking statutory contribution to any damages payable by it under s 5 Law Reform Miscellaneous Provisions Act 1946 (NSW). Additionally Staff Innovations claims statutory indemnity for workers’ compensation paid to, for or on behalf of Mr Donald under s 151Z(1)(d) Workers’ Compensation Act 1987 (NSW) (“WCA”).

The issues

6. Several factual issues were strongly contested. Fundamentally, the first and second defendants join issue with the plaintiff that the back injury was sustained in the manner alleged, that is, that he suffered a back injury during the course of his employment with Staff Innovations while working under the supervision, and on the premises, of Rail Corp. Expert evidence attests to the existence of a spinal injury. Images of a left-sided disc prolapse at the L5/S1 level were observed on scans in late June 2008. While subsequent scans suggested that there had been some re-absorption of the protrusion, his condition was such that in April 2010 a spinal fusion at the L5/S1 was recommended and carried out.

7. Both defendants submit that the injury did not occur at work. They contend that the credibility of the plaintiff is limited and draw attention to the allegedly inconsistent accounts of his back injury provided to various medical practitioners prior to and after May 2008. The credibility of Mr Price, who was called to corroborate the plaintiff’s account of events in May and June 2008, was also impugned.

8. Both defendants also take issue with the plaintiff’s enunciation of the nature and content of their respective duties of care. The plaintiff argues that each defendant owed a duty to institute and maintain a safe system of work which, in this case, extended to ensuring that the work included a system of task rotation, such that no individual worker would operate the jackhammer for longer than 20 minutes at a time. Rail Corp responded that workers were allowed to take as many breaks as they wished and that such a system of work rotation was already in place. The men (there were no women) were required to work in teams of two so that they would alternate between tasks, and each worker had the opportunity for a 5-20 minute break after using the jackhammer while subsequent necessary tasks could be carried out.

9. Staff Innovations maintain that it was not negligent. It accepts, as direct employer, that it owed a non-delegable duty of care. However, its case is that was not in a position to exercise control of the work even by simply making enquires about, or inspections of, the system of work let alone by actually prescribing the system and enforcing its maintenance to ensure task rotation. Staff Innovations further relies on the circumstance that Rail Corp was in possession of the worksite; in control of the work; and devised the system of work to assert that any injury suffered by the plaintiff by departure from the system prescribed was not the materialisation of a risk of harm reasonably foreseeable by an employer in its position.

10. It is the plaintiff’s case that the failure to ensure rotation of work tasks was a necessary condition of his back injury. Rail Corp joins issue with this, maintaining that Mr Donald suffered no such injury whilst at work. Rather, it says that the back pain complained of was caused by a serious assault in 2001. Rail Corp acknowledges that he reported an incident at work in May 2008, but he lost only one shift from work, returning with a medical clearance for his usual work. Thereafter the plaintiff performed that usual work until it was withdrawn in June 2008; kept up his frequent gym attendances, sometimes twice on one day, where he lifted weights; and later performed similar work on the railway with another labour hire firm.

11. Staff Innovations says that even had it made enquires about, or inspections of, the working conditions, it would have been told, or ascertained, that the system of work required task-rotation. Such enquiries, therefore, would not have disclosed the risk of injury, and they were in no position to take reasonable care to obviate it.

12. Both defendants insist that the plaintiff was himself negligent. The plaintiff had a duty to do the work only as trained and, if his account is believed, he did not follow that training. Moreover, he was under a duty to take all reasonable steps to avoid injury. If he was injured because he failed to rotate his work tasks with his workmate, that was his own fault. Accordingly, there should be a finding of contributory negligence, assessed in the range of 15%– 20%. The Mr Donald argues that for such a claim to be made out, the defendants must prove disobedience by him of directions from them about how the work was to be performed. The plaintiff says there is no evidence of this.

13. The defendants disagree about the apportionment of any liability I might find. Staff Innovations maintains that if liable their share should be much less than that of Rail Corp. Rail Corp was the occupier of the premises, with control and management of them. Rail Corp organised the system of work and provided all plant and equipment for use by the workers. Rail Corp exercised actual control of the workers. As such, Staff Innovations submit that their share of any liability should be assessed as 0%.

14. Conversely, Rail Corp argues that Staff Innovations were directly involved in the work. This is evidenced by the plaintiff’s frequent communication with Staff Innovations, through Mr Bamford, who controlled the company. Mr Bamford regularly attended the work site.

15. There is the usual array of issues about quantum.

Mr Donald’s background

16. To resolve the issues in this case, it is necessary to say something now about Mr Donald’s background. Mr Donald was born on 16 August 1975 and accordingly was aged 32 years when he last worked at Rail Corp; 40 at the date of hearing; and 41 now. It is fair to say that he has had something of a difficult, indeed troubled background. He was not a good scholar. Family changes led to frequent changes of school. Although he completed year 10 of high school, he was not awarded a school certificate. He had difficulties with the basics of reading, writing and maths.

17. After leaving school he worked as a deckhand on a fishing trawler out of Wollongong Harbour for 6 or 7 years. He eventually left that work because he was dissatisfied with his earnings. He was later trained by his father in work as a machine operator. His father operated a tipper-truck and bobcat as an excavation sub-contractor. When his father died suddenly in about 2002, Mr Donald took over the excavation business and continued in that work until he found it uneconomical to repair the equipment. He was able to sell the truck and bobcat. He began working as a machine operator for wages for various employers until around 2007 when he decided to work as a labourer. He put his name down with a number of labour hire companies including Drake Personnel, Multi Civil and Rail and Staff Innovations.

18. He started on the work with Staff Innovations replacing sleepers in the City Circle tunnels on 25 August 2007. He continued in this work until 14 June 2008.

19. I think it can be said without any fear of contradiction, that in his late teens and early twenties, Mr Donald developed a real problem with alcohol. When intoxicated he became very aggressive and was involved in a number of fights. A summary of the records of Wollongong Hospital tendered in evidence discloses as many as 16 attendances at its Emergency Department between 20 August 1995 and 21 December 2008 for consequences of drunken violence of one kind or another. There were many other attendances for injury and illness.

20. Of the 16 attendances I have mentioned, that of 25 August 2001 assumed some significance in the case. Rail Corp argued, based on a history recorded in the Illawarra Brain Injury Service (IBIS) notes of 21 and 25 June 2008, that the assault of 25 August 2001 was the cause and origin of any back injury. For Mr Donald it was argued that his obvious difficulties as a witness, in particular, his overt combativeness, was due to a closed head injury suffered in this assault.

21. Mr Donald’s account is that he was a victim of a vicious assault outside the Harp Hotel in Wollongong. He describes being set upon by a large group of people and ending up in hospital. He says he woke up four days after the assault with no recollection of the lost time. He believes he suffered head injuries including traumatic brain damage.

22. Wollongong Hospital’s records show that Mr Donald was brought in by ambulance following an assault. He had been unconscious at the scene with facial injuries. He was obviously intoxicated. He was unresponsive to verbal stimuli, but responded to touch. He was treated as an inpatient between 25 and 30 August 2001. The diagnosis was of seizures following head injury. Three CT scans of the brain did not show any focal lesion or frank injury to the brain. He did not co-operate with the administration of the post traumatic amnesia assessment (PTA) on 29 August 2001, seeking to discharge himself contrary to the advice of his doctors and family. He was discharged on 30 August 2001 with a PTA score of 6/7. He was said to be unsure of the day of the week. A further CT scan of the brain on 14 February 2002, when he was admitted following another altercation in which he fell on his left elbow, again showed no focal lesion. Nor did a further CT scan of 12 March 2002.

23. It is also relevant to record here that his propensity to drunken violence brought him into contact with the criminal justice system, including the parole and probation service. It was this service that referred him to IBIS.

Was the plaintiff injured working for Rail Corp

24. The plaintiff’s case is that he suffered back injury because of the nature and conditions of his employment at Rail Corp. It will be necessary to descend into some detail about the nature of this work in dealing with negligence issues. For present purposes, it is sufficient to say that, in my judgment, it is very heavy labouring work. The work involved the removal of old timber sleepers and their replacement with polymer sleepers. The old sleepers were released from their concrete beds by jackhammer. They were then cut by chain-saw, and manhandled out of position. Their former beds were cleaned up with the jackhammer to prepare for replacement with the new polymer sleepers. They too were manhandled into position and formed-up for concreting them into place. The rubble produced by the jackhammering was shovelled into bags. This also struck me as heavy work. Mr Donald said some of the bags weighed 30kg when filled. The bags were then moved by hand to one side of the track. They had to be picked up later onto the back of a truck for disposal.

25. Mr Donald worked on the nightshift. The hours of actual work were mostly limited by the consideration that only restricted “possession” of the track was available to the work teams. The team Mr Donald worked in assembled in Wollongong and travelled to Sydney where they remained on standby until “possession” could be taken of the section of track to be worked on that night. It may be that on many, if not most nights, only about 4 hours of physical labour was required. Mr Donald usually worked 32 hours per week but weekend overtime, dayshift work was available from time to time and these shifts were longer. Mr Donald took the available overtime.

26. The jackhammer weighed 41 kilograms. The new sleepers were mostly half sleepers with a full sleeper installed at regular intervals. They also were heavy according to Mr Donald, weighing about 20 kilograms. The old timber sleepers were said to weigh about 80 kilograms, which does not sound right. Before they were removed, as I have said, a worker cut a section from their middle with a chain saw, so they were removed in three sections. The middle section was somewhat shorter than the ends. Rail Corp’s expert ergonomist, Mr Horrigan (Exhibit 1D13(A)) estimated the weight of the end section of a timber sleeper at 30 kilograms and the polymer short sleepers at 20 kilograms.

The plaintiff’s case on injury

27. A case pleaded as a “nature and conditions count” normally implies the absence of a frank injury. Such a case is one of injury received through the accumulation of minor traumata. Notwithstanding his pleading, Mr Donald relies upon the occurrence of two incidents at work. The first is said to have occurred on the night of 12 May 2008, in reality the early hours of 13 May 2008. He said (Exhibit A1):

“I felt my back getting sore. It was like a “twinge”. I reported it to my boss.”

Mr Donald said he finished his shift, but his back was still sore when he woke up and he attended a Dr Hofer, because he could not get in to see his usual doctor, Dr Ajam.

28. A WorkCover medical certificate under the hand of Dr Hofer is attached to Exhibit A1. In the section to “be completed by the injured worker”, the question “how the injury occurred” has been left blank. Dr Hofer diagnosed a lower back strain, and certified Mr Donald as unfit for the shift of 13 May 2008 but fit for pre-injury duties from 14 May 2008, which latter date the certificate bears. I interpolate that there was a conversation between Mr Donald and Staff Innovations’ Mr Bamford about him missing the shift of 13 May 2008. I infer that Mr Bamford told Mr Donald he needed a clearance for work if he intended to return to work that night. I also accept that Mr Donald was keen to work and to minimise any loss of time. I accept that when he signed in for work on 14 May, he signed, what I will refer to as, the time sheet, indicating that he had no injury or disability affecting his fitness for work.

29. As I will deal with below, part of Mr Donald’s case is that the partner with whom he had worked since his commencement on the work in the tunnels, Mr Gonzales, was an older man who, in Mr Donald’s terms, “refused to do any jackhammering” (Exhibit A1 [35]). Within a couple of days of his return to work, Mr Donald said he was given a new co-worker, Albert Price. Mr Donald and Mr Price had known each other previously. Mr Donald said that he had requested to be paired with him on occasions prior to ‘the alleged injury.’ After they were teamed up, Mr Donald said “Mr Price did all the jackhammering” (Exhibit A1 [89]).

30. The second incident that Mr Donald relies upon is said to have occurred on 12 June 2008. I infer from his evidence that notwithstanding his return to work on normal duties with a clearance, his back continued to bother him in the performance of his work. Mr Donald’s evidence is (Exhibit A1 [90]):

“After a few weeks, on or about 12 June 2008, I was feeling better from the break from jackhammering and I was also feeling guilty that Albert had been carrying me for the last few weeks and I asked Albert to let me have a go on the hammer.

I was only able to do 1 sleeper, and didn’t even finish that, before I realised I couldn’t go any further.”

He had to stop and sit down. He said, “I couldn’t move and I was in agony”. He said he reported the injury to a Rail Corp employee he knew as “Pincho” (Mr Steve Thompson) and lay down in the truck until the completion of the shift, without performing any further work. He also said that this was his last shift working for Rail Corp. I should interpolate that the records show that 12 June was a Thursday and that his last shift was Saturday 14 June 2008. He was supposed to work on Sunday 15 June, but failed to attend (59.35 – 61.25T).

31. Mr Albert Price was called to corroborate some of these circumstances. Giving evidence on 2 November 2015, Mr Price remembered Mr Donald complaining about having a “sore back” because Mr Donald “was doing all the jackhammering” (306.35 - .50T). Mr Price said that this was just before he became his partner “to help him” (307.15T). After about “a month” (308.25T) of this arrangement, Mr Donald “wanted (a) turn (on) the hammer” (308.40T). Mr Price said (308.50T – 309.5T):

“Within a few minutes ‑ that I've just got in the drain and he's laying beside me with a hammer almost on top of him screaming in pain.

Q.  Did he say anything

A.  Yeah.  "My back.  My back."  Something along them lines. (sic)

Q.  So he's laying in the drain you said?

A.  Yeah.”

There is a drainage ditch below the track in the middle of the line. He said that Mr Gonzales and Mr Thompson were there, I infer in the near vicinity, and Mr Thompson asked Mr Donald to get up (309.50T). Mr Price said that Mr Thompson coaxed Mr Donald to his feet and said “we’re going to have to report this, Alan”. Mr Donald went to the truck. Mr Price did not see him at work again.

32. Mr Burbidge QC, who appeared with Mr Casselden for Rail Corp, cross-examined Mr Price with a rhetorical air of incredulity. But he did not put to him that he was lying about the dramatic circumstances of the injury he described. Nonetheless, it is self-evident that the circumstances described by the plaintiff and Mr Price in relation to the second incident, had they occurred as they recounted, could hardly have gone unnoticed by others and one would expect they would have been reported contemporaneously if Mr Thompson had taken Mr Donald away for that purpose and to rest in the truck. But no such records were put in evidence. I flag here, however, that Mr Campbell SC, who appeared with Mr Longhurst for Mr Donald, made complaints about what he regarded as inadequate compliance by Rail Corp with a subpoena or notice to produce.

Rail Corp’s case on injury

Rail Corp’s contemporaneous records

33. Rail Corp relied upon a variety of circumstances to resist Mr Donald’s case in relation to the occurrence of injury. I think it fair to say that Rail Corp was prepared to accept that something relatively minor, or inconsequential, may have occurred on 13 May 2008, but it strenuously resisted the suggestion that the plaintiff had proved any injury, let alone significant injury occurring on or about 12 June 2008. Among these circumstances it is convenient to start with Rail Corp’s records.

34. Rail Corp read a statement from Darin Ramaswmy (Exhibit 1D [16]) employed as a team leader in its Injury and Claims Management Team. He described the system for reporting injuries and produced a computer printout of a report of injury at 1am on 13 May 2008 by a person working jackhammering sleepers in the Sydney underground. The person is identified as “anonymous” indicating in the recording system that he was the employee of a contractor. The injury was said to have been reported to Mr Steve Thompson and the “notifier name” is “Alan Donald”. This is clearly a report of injury by Mr Donald at that time and on that day, probably facilitated by Mr Steve Thompson.

35. Mr Ramaswmy searched for records of injury “in the Circular Quay tunnel on 13 and or 14 June 2008”. He stated there was no record of any injury to Mr Donald for those dates.

36. Mr Ramaswmy also provided a spreadsheet on DVD of all injury reports for 2008 including to workers in the underground tunnel in 2008. Mr Donald’s injury of 13 May 2008 is recorded with the number, 1536. The nature of the injury, i.e. back injury, does not appear. There appear to be no other reports of injury “jackhammering sleepers”. I do note in passing, however, that there are other complaints of lower back injury from manual-handling work. See, for example, 1487 and 1488 on 9 May 2008.

Mr Thompson’s evidence

37. In his statement (Exhibit 1D [11] at [47]) Mr Thompson said:

“I think Alan said something about his back at the end of the night being sore and I told him to take it easy and lie down in the truck. It is the first and only time he told me anything about his back. He did not say he had injured himself”. (My emphasis.)

He dated this complaint to “around May/June 2008” at [65].

38. In cross-examination Mr Thompson said that Mr Donald “came to me and said he had a sore back” (551.25T). He only remembered Mr Donald coming to him; something about a sore back; him lying down in the truck; and mentioning the hotline (to report the injury). He cannot remember the details because “it was too far back” (551.40 - .45T). Although his recollection was, understandably, somewhat vague, he seems sure that “a sore back” was mentioned by Mr McDonald once only. When asked whether it was possible that there were two such reports, he answered “no, it was just once”.

39. To my mind this sounds more like what is said to have happened on 13 May 2008 than 12 June 2008. But it is significant to my mind that he recalls telling Mr Donald to take a break from work by lying down in the truck.

Records of Illawarra Brain Injury Service

40. Mr Donald was referred to the IBIS, by Wollongong Probation and Parole Service on 18 April 2008 for investigation of ongoing difficulties which may have been related to the assault of 25 August 2001 (Exhibit 1D [24]), which I infer was part of the latter service’s supervision of Mr Donald pursuant to a bond. The initial assessment form dated 30 May 2008 records the nature of his injury as a traumatic brain injury following the assault on 25 August 2001, and current medical issues as “lower back pain on left side with sciatic pain”. I interpolate this is just over two weeks after the alleged incident of 13 May 2008. The records also recorded that he was claiming, or had claimed, Victims Compensation.

41. I would not have regarded this entry as indicating a history received from Mr Donald of back injury on 25 August 2001. The current medical issue is not connected to the history of the incident.

42. Ms Emma Calvert, a speech pathologist and IBIS’s rehabilitation co-ordinator reported to Mr Donald’s former GP, Dr De Silva, on 12 June 2008. Ms Calvert reports a complaint of left side back pain, but does not expressly relate it to the earlier assault. She records that Mr Donald “more recently does a lot of jackhammering in his labouring work for the railways” and recommends that he be seen by Dr Jonathon Wyatt, a rehabilitation specialist, to investigate, inter alia, the back pain.

43. Dr Wyatt’s handwritten note of 25 June 2008 is almost impossible for me to decipher. But in a report to the same GP, bearing that date, he records:

“I reviewed Alan Donald, aged 34 in the Illawarra Brain Injury Out Patients Department today at the request of his case manager, in regards to his ongoing low back pain following an assault in 2001 resulting in a head injury. In brief, Alan describes ongoing back pain since the assault in 2001. He denies any back pain prior to the assault”.

The report also records:

“Alan works part-time for Rail Corp as a labourer which involves using a jackhammer, which significantly increases his pain. He apparently does have a workers’ compensation case pending, although he is unclear on the details.”

There was no workers’ compensation claim at that time. Dr Wyatt diagnosed “significant mechanical/discogenic low back pain as a result of the assault”.

44. I interpolate that the GP replied that Mr Donald had last consulted him on 24 November 2003 and that he knew nothing of any “work related injury” or “pending workers’ compensation case”. Mr Donald saw Dr Wyatt again on 29 October 2008 and did not give any further history. He continued to see Dr Wyatt on a number of subsequent occasions.

45. On 3 October 2008 Mr Donald spoke to Ms Calvert by telephone reporting a “recent back injury at work” and stated that he was off work with a medical certificate on workers’ compensation. In her Discharge Summary prepared on or about 11 June 2009, Ms Calvert recorded the following:

“On 3 October 2008, Alan reported a workplace back injury which he stated occurred several weeks prior. He reported that he was off work with a medical certificate from his GP for at least one month. He reported severe back pain since then and has been unable to participate in a rehabilitation program through IBIS as planned due to pain, anxiety and tendency to become easily overwhelmed with intervention. His girlfriend has since clarified that the workplace injury actually occurred on 15/5/08 (i.e. prior to his initial contact with IBIS). Alan chose not to declare this information to myself or Dr Wyatt during initial case histories, therefore the back pain reported by Alan, was attributed to the assault which occurred in 2001, not the workplace injury in 2008. This was based on the information Alan provided at the time.” (My emphasis)

I interpolate, it is clear that there was no history of any incident of 12 June 2008 given to IBIS at any time.

46. Rail Corp argued that this material supported its argument that the incident of 13 May 2008 was inconsequential and no incident like that described by Mr Donald occurred on 12 June 2008. It went further and argued that I could not be satisfied on the balance of probabilities that Mr Donald’s back injury was not caused by the assault of 25 August 2001.

Evidence of Mr Donald and his partner, Ms Stevens, about contact with IBIS

47. When cross-examined about the history recorded in the IBIS notes of back pain since 2001, the plaintiff denied giving IBIS any account of back pain and then said: “not that I know of” (84.5T). He agreed that he “made no reference whatsoever when sitting down with the initial consultation with the IBIS people … of any workplace accident” (85.15T). Although his memory was faulty, he was seeing IBIS about his brain injury and he accepted that he probably did not mention a work injury until 3 October 2008 (86.20T). He then said “I am not sure, I can’t remember back that far” (86.45T). I note that he did in fact mention the effect of heavy jackhammering on his back when he saw Dr Wyatt on 25 June 2008.

48. Ms Tara Stevens was cross-examined about her contact with IBIS. She said she became aware that Mr Donald’s back injury was being attributed by IBIS to the 2001 incident when she was reviewing Mr Donald’s workers’ compensation documents for him: (379.23 – 31T). She says she took the opportunity to clarify the date (374.34T).

The pattern of the plaintiff’s gym attendance

49. During 2007 and 2008, Mr Donald was a member of the University Recreation and Acquatic Centre. Rail Corp tendered a record of his attendances at that gym between 27 September 2007 and 8 October 2008. He was a very frequent attender. It was said that this indicates that he must have had no back injury (Exhibit 1D1); although I note that the records of IBIS (Exhibit 1D24) record a history of a gym program prescribed as part of his rehabilitation after the work injury.

50. He attended the gym at 9:50 on 12 May 2008 and not again until 19 May 2008. This is an unusual gap. He did not attend between 11 and 16 June 2008, but on the latter date he attended twice. He attended twice again on 16 July 2008 and he attended frequently on consecutive days. Over the period of about 12 months he attended 124 times.

Other medical histories

51. As I have already recorded, Dr Hoffer, who was in practice with Dr Ajam, recorded a history as strained lower back at work on 12 May 2018. Mr Donald consulted Dr Ajam about this matter on 18 June 2008. His record is as follows:

Works with a jackhammer – 70 kilograms and he bends forward for most of the day and as the pick has been sharpened regularly which shortens it and hence he needs to bend more each time he does. (sic)

52. Dr Ajam provided Mr Donald with a WorkCover Certificate (see exhibit W) which gave the date of injury as 12 May 2008 and the history:

Worked with jackhammer, lots of forward bending

Dr Ajam’s diagnosis was acute back injury/query lumbar disc protrusion/sacro iliac strain.

53. After a period of conservative treatment, Dr Ajam referred Mr Donald to Dr Cherukuri, a neurosurgeon, in the early part of 2009. In his report of 17 March 2009, the specialist records (Exhibit 1D28):

Many thanks for referring Mr Donald who presents to my rooms with a history of acute onset of back pain when he was working on the railway sleepers in May 2008 using a jackhammer. He had intense onset of pain and has stopped work. For the past 3 months he noticed the pain radiating down the left leg up to the knee. He also reports paraesthesia in the left leg, predominantly involving the little toe. There is no history of numbness.

It’s convenient to interpolate that on examination, Dr Cherukuri found “a minimal weakness of the left extensor halluces longus, which could be partially contributed by pain. He has diminished sensation over left S1 dermatomal distribution and minimal altered sensation over the left L5 dermatomal distribution. The reflexes are elicited well and are symmetrical.” Dr Cherukuri noticed evidence of lumbar spondylosis and left L5/S1 disc protrusion on CT Scan. He concluded:

I have advised MRI scan for Mr Donald in view of persistent left sided sciatica and recent worsening of his symptoms with radiculopathy.

54. In addition, Dr Manahor who saw Mr Donald on 23 May 2009 received a history of injury on 12 May 2008 “working on the jackhammer”. Dr Bodel, who first saw Mr Donald on 11 May 2009 for the workers’ compensation insurer, received a history of injury on 13 May 2008. Dr Bodel’s history was of a steady build-up of pain for a week and a sudden deterioration on 13 May 2008.

55. Mr Donald saw Dr Maxwell for Rail Corp on 12 January 2011. Dr Maxwell received a very similar history to that received by Dr Bodel of a development of back pain in early May 2008 while jackhammering, which was getting gradually worse. He received a history of worsening on 13 May 2008 in circumstances which sound very much like Mr Donald’s evidence about what happened on 12 June 2008.

56. I will not detail all of the medical reports which were referred to by Rail Corp in its submissions on this point. But other than an assessment report of 15 December 2009, which simply records a report of lower back injury on 13 June 2008 whilst performing jackhammer duties, the overwhelming impression from considering the medical reports, voluminous as they are in this case, is that the date of injury given by Mr Donald in medical histories is around 13 May 2008 and not 12 (or 13) June 2008.

The circumstances of the plaintiff leaving employment

57. I have already said that the evidence shows that the plaintiff’s last day of employment was 14 June, not 12 June, 2008. He accepted that he was supposed to work on 15 June, but did not. He also accepted that he put this down to the flu, not his back, when he spoke to Mr Bamford. Mr Bamford’s statement was admitted as Exhibit 1D26.

58. Mr Bamford states (page 5 [28]) that Jim Iordanidis, a Rail Corp supervisor who also gave evidence, telephoned to inform Mr Bamford that Mr Donald had suffered an injury. This is the injury of 13 May 2008. Mr Steve Thompson had reported to Mr Iordanidis that Mr Donald had complained of a sore back jackhammering. Mr Bamford entered the details in the Staff Innovations Injury Register (Exhibit 1D [26] I) and subsequently completed an Accident Investigation Report (Exhibit 1D [26] J), although that latter document was not completed until 30 June 2008.

59. Mr Bamford spoke to Mr Donald about the matter and was told the latter felt better after a hot shower and Dencorub. Mr Donald expressed the intention of returning to work that evening. But Mr Bamford said “you should not go to work this evening. Go and see a doctor and get the all clear before you return to work.” Mr Donald provided him with a copy of Dr Hofer’s WorkCover Certificate on a later date.

60. Mr Bamford heard nothing further about any back injury before receiving a complaint about Mr Donald’s non-attendance on 15 June 2008. At the same time, he was informed that the sleeper replacement work would be suspended during the period of the World Youth Day Festival. It had also been determined that two workers would need to be stood down for an additional three weeks due to budgetary restraints. One of those nominated was Mr Donald.

61. When Mr Bamford spoke to Mr Donald he informed him that he would not be required to work for the next six weeks. Mr Donald called him back on 17 June, this was before he saw Dr Ajam, telling him that he would face financial difficulty and that he intended to make a claim for the back injury sustained on 13 May 2008 (there was no mention of 12 June). He informed him that he was going to see a doctor about the matter. As will be recalled Mr Donald did see Dr Ajam the following day, 18 June 2008.

62. As I mentioned above, one of the labour hire companies Mr Donald signed up with was Multi Civil and Rail Services Pty Ltd. It is not without significance that its records show that Mr Donald earned $900 gross for 20 hours work with that company during the pay period 16 June 2008 to 22 June 2008. This work was performed on the weekend of 20 and 21 June 2008. This circumstance is not necessarily inconsistent with injury, but it does seem to be inconsistent with a dramatic event occurring on 12 June 2008 after which the plaintiff could not work again.

63. It should also be said when cross-examined about this topic, Mr Donald freely admitted performing the 2 days of work each of 10 hours on the weekend shift with this company (122.5 - .25T). I accept it may have been the case that he performed the work with difficulty.

Workers’ compensation form

64. Mr Donald signed a workers’ injury claim form on 7 July 2008. Apparently it was not received by Staff Innovations until 22 August 2008 (Exhibit 1D2). It gave the date and time of injury as 12 May 2008 at 2am and the cause of injury as jackhammering sleepers in tunnel. Mr Price was said to be a witness.

Findings on evidence

65. This body of evidence referred to by Rail Corp is by and large based upon contemporaneous records. The evidence of Mr Donald and Mr Price is based upon their recollection of events when giving evidence 7 years later. Mr Donald received a significant head injury which apparently affects his powers of recall. Mr Price had not been asked to consider his recollection until many years after the events.

66. In my view, this body of evidence is overwhelming. In the face of it, I am not persuaded on the balance of probabilities that any injury occurred on 12 June 2008 in the Circular Quay tunnel, and certainly not an injury occurring in circumstances as dramatic as those described by Mr Donald and Mr Price. Rather, it seems clear that Mr Donald worked up until 14 June 2008, was absent from work on 15 June for reasons unconnected with a back injury and then was informed by Mr Bamford on 17 June 2008 that he was being stood down for a number of weeks due to budgetary constraints and the cessation of work during what I infer was an expected tourist surge on the train network around World Youth Day in 2008. The circumstance that he was able to work, in some fashion or another with Civil Multi and Rail the following weekend is also significantly inconsistent with Mr Donald’s version of events about what occurred on 12 June 2008. He was surprisingly slow completing and lodging his claim for workers’ compensation in circumstances where he was obviously keen to keep earning. This is a minor, but not insignificant factor in making a finding that no injury occurred on 12 June 2008.

67. Conversely, much of this same contemporaneous material strongly points to the occurrence of an injury, or the culmination of an injurious process, on 13 May 2008. It is apparent that Mr Steve Thompson was aware of it and facilitated Mr Donald’s compliance with procedures by reporting the matter to the “injury hotline”. A contemporaneous record of that report was made. Moreover, Exhibit A to Mr Ramasawmy’s statement demonstrates that a record of injury has been maintained. Mr Iordanidis reported the matter to Mr Bamford of Staff Innovations who created a record of it. Mr Bamford also spoke to Mr Donald about it and received contemporaneous confirmation from him that the injury had occurred. At Mr Bamford’s insistence, Mr Donald attended Dr Hoffer; made a report of injury; and received a medical certificate for the one shift he lost together with a clearance to return to work.

68. Moreover, all of the contemporaneous records and histories given to doctors around this time are consistent with the plaintiff’s evidence about what happened on 13 May 2008, namely that he suffered some sort of back injury jackhammering. Notwithstanding that in some of his evidence Dr Maxwell (714.5 - .30T) took the stance that “hard work never hurt anyone”, it is not implausible that performance of heavy labouring work of the type Mr Donald was required to perform in the course of his work at Rail Corp will produce a back injury.

69. Dr Bodel was of a different view to Dr Maxwell (706.5 - .35T). Notwithstanding his more robust approach, Dr Maxwell accepted that “labourers do hurt their backs at work” and that there may be “a connection between the back injury and the work” (708.35 - .45T). In my view, this accords with common experience.

65. Indeed, in their joint report of 11 April 2013 (forming part of Exhibit 1D 14A) both Dr Bodel and Dr Maxwell agreed:

… the initial diagnosis was an L5/S1 disc protrusion to the left, which from the history provided appears to have occurred on or about 8 May 2008.

71. They both agreed “that there is probably a pre-existing degenerative condition at the L5/S1 level, which may have been partially responsible for the original disc protrusion …”. Dr Maxwell later resiled from this agreement because he formed a different view of the MRI scan performed on 27 March 2009 once he viewed the actual scan rather than the report (see report 18/6/2013 part of Exhibit 14A), however, the point at this stage is that implicit in the agreement is the consideration that the type of work Mr Donald was performing on 13 May 2008 was capable of causing an injury to the spinous processes of his lower back.

72. I find that Mr Donald did suffer low back injury in the course of his employment on 13 May 2008. The nature and the extent of the injury will be discussed later in these reasons. But given Mr Thompson’s evidence it was probably more significant than Mr Donald’s own account suggests.

Did Mr Donald injure his back in 2001?

73. I turn then to whether Mr Donald has satisfied me on the balance of probabilities that he did not suffer back injury on 25 August 2001 when he was assaulted. It must be said that the two are not mutually exclusive. It is conceptually possible that he may have suffered the original injury on 25 August 2001 which was later aggravated on 13 May 2008 in a material way. There may have been separate injuries on each of those days. However, I have concluded that he did not suffer a back injury on 25 August 2001.

74. Due to Mr Donald’s difficulties as a witness, and the great effluxion of time since all of these events occurred, I have relied as far as possible on contemporaneous records, at least to the extent to which they, from their context, seem reliable.

75. There is no suggestion that Mr Donald suffered a back injury in 2001 until after the occurrence of 13 May 2008. None of the many subsequent attendances at Wollongong Hospital for various matters after his discharge on 30 August 2001 reveal any complaint about any back pain. When Ms Calvert first looked at his file on 23 April 2008, the only matter of interest was the clarification of the likelihood of a traumatic brain injury. When she spoke to Mr Donald on 30 April 2008, two weeks before the injury, she took a very detailed history of his difficulties, which seemed to relate to apparent cognitive and psychological issues such as ongoing memory difficulties, increased stress and anger and mood fluctuations. At that time she recorded:

Continues to work three night shifts on railways – no problems reported.

I emphasise, there is no record of any back injury anywhere at that time. The first mention of back injury is in her initial assessment form of 30 May 2008. As I have already said, at that time under the heading “Current Medical Issues” she records a complaint of lower back pain on his left side with sciatic pain. It’s not apparent at that time that Mr Donald was relating that matter to the 2001 assault, although given Ms Calvert’s letter to Dr De Silva, she may have thought he was. This seems to me likely given the explanation proffered by Ms Calvert in the discharge summary quoted above. By the time Mr Donald saw Dr Wyatt on 25 June, it’s hard to conclude other than that he was content for IBIS to associate the back injury with the assault on 25 August 2001. And there is force in Rail Corp’s submission that he must have considered he had something to gain from maintaining that position. There does seem to be something in the argument that he attempted to quarantine any workers’ compensation claim from whatever he hoped to get from his involvement with IBIS. At the same time, he did mention the jackhammering made his back pain worse (as at 25 June 2008) and he was bringing a workers’ compensation claim in respect of it. Of course, at that time he hadn’t even lodged a claim form, although he then intended to, which might explain a degree of “caginess” about that topic.

76. By the time he tried to unravel these matters on or about 3 October 2008, he was hardly clear about it, which may in part relate to his other issues. However, I accept that when Ms Stevens spoke to IBIS about this confusion, she was well-motivated, attempting to clarify the confusion which she appreciated had been engendered by Mr Donald.

77. A further matter is that it seems clear that Mr Donald was able to perform hard physical semi-skilled and unskilled work over the intervening period between August 2001 and May 2008. This is not of itself a very significant matter in the circumstances of this case given that he persisted at Rail Corp after 13 May 2008, only ceasing that work when it was withdrawn and even attempting other labouring work the following weekend. Still, it has its part to play in my thinking.

78. Essentially, the absence of any contemporaneous suggestion of back injury because of the assault on 25 August 2001, but also for the other reasons I have expressed, lead me to conclude that no back injury was suffered at that time.

Mr Donald’s credit

79. That, however, raises other issues. Juries are commonly directed that they may accept and reject different parts of a witness’s evidence. Essentially, that is what I have done in my findings on injury. I have certainly rejected the evidence of Mr Price, that is to say, I am not persuaded on the balance of probabilities that his account of injury to Mr Donald is reliable. It follows that not all of the evidence of Mr Donald is reliable. In particular, making every allowance for whatever pre-existing cognitive and emotional problems Mr Donald may suffer, which may account for his combative demeanour and poor memory, I have a lingering suspicion that he is liable to say what he thinks might help his case as he sees it and this makes it difficult to accept what he says at face value. It was not put to him that he was deliberately lying and I make no such finding. But credibility involves reliability and, for the various reasons I have discussed, there are questions about Mr Donald’s credit which I will bear in mind as I address the other issues in the case.

Issues of legal liability

80. In my opinion the relationship amongst the parties in this case is on all fours with the category of case discussed by the Court of Appeal in TNT Australia Pty Ltd v Christie (2003) 65 NSWLR 1; [2003] NSWCA 47. That is to say, Mr Donald was an employee of Staff Innovations whose services were lent to Rail Corp to work under the latter’s supervision and in a system of work devised, instituted and maintained by it. Rail Corp owed Mr Donald a duty of care analogous to the duty owed by an employer to an employee. Basten JA discussed Christie and subsequent cases in Bostik Australia Pty Ltd v Liddiard & Anor [2009] NSWCA 167. At [139] his Honour distilled the following principle:

“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 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:

the degree of control or direction exercised or which the third party is entitled to exercise over the worker;

the condition of plant or premises under the control of the third party, or

the activities of others on the site, generally for the purposes of the third party’s undertaking or business.”

And at [143]:

“In TNT Australia Pty Ltd v Christie … in relation to the plaintiff, whose labour was provided to TNT by his employer, Mason P stated at [41]:

TNT exercised day-to-day control over the plaintiff’s work activities, treating him to all intents the same as its employees as regards work on the factory floor … It can be seen that the plaintiff and TNT placed themselves in a relationship, day in and day out, indistinguishable from that of employee and employer … [H]ere the plaintiff had for months been under the daily control of TNT and its managerial staff at the brewery. He was a relatively unskilled labourer. He reported daily to the brewery and everything that he did there was done under the full control of TNT.”

81. It can be seen, in the totality of the relationship between Rail Corp and Mr Donald, that each of the three common factors relevant to the existence of a duty of care as described by Basten JA at Bostik [139] is present. Rail Corp exercised control over Mr Donald in the performance of his work; it supplied the plant and the premises which at all times remained under Rail Corp’s control; and the activities of the contract labour, like Mr Donald, were for the purpose of Rail Corp’s undertaking.

82. There can be no doubt that Rail Corp owed Mr Donald a duty analogous to that owed by an employer to an employee.

83. The High Court of Australia described the content of the employer’s duty of care in Czatyrko v Edith Cowen University [2005] HCA 14 at [12] – [13] in the following terms:

“The appellant relied in this court on these basic general principles. An employer owes a non-delegable duty of care to its employees to take reasonable care to avoid exposing them to unnecessary risks of injury. If there is a real risk of an injury to an employee in the performance of a task in a workplace, the employer must take reasonable care to avoid the risk by devising a method of operation for the performance of the task that eliminates the risk, or by the provision of adequate safeguards. The employer must take into account the possibility of thoughtlessness, or inadvertence, or carelessness, particularly in a case of repetitive work.

The appellant’s reliance on these principles is well founded.”  [Footnotes omitted]

84. This statement of principle applies to both Rail Corp and Staff Innovations.

85. However, questions of breach differ. The question of whether Rail Corp has breached the duty of care it owed to Mr Donald depends upon the application of the provisions of Part 1A of Civil Liability Act 2002 (NSW). Questions of breach on the part of Staff Innovations are to be determined by an assessment made in the manner described by Mason J in Wyong Council v Shirt (1980) 146 CLR 40 at [47] – [48]; RTA v Dederer (2007) 234 CLR 330; [2007] HCA 42 at [8], [65] – [68] (see s 3B(1)(f) Civil Liability Act).

Was Rail Corp negligent in the circumstances of Mr Donald’s injury

86. The starting point for this question is the correct identification of the risk of personal injury against which Mr Donald says Rail Corp should have taken precaution. The requirement to identify the risk arises from the judgment of Gummow J in Dederer at [59] – [60]. The language of the chapeau in s 5B Civil Liability Act requires the same approach.

87. In Vincent v Woolworths Limited [2015] NSWSC 435; affirmed in [2016] NSWCA 40, I said (at [24] – [28]):

“Ms Vincent’s case in negligence is that Woolworths failed to take precautions against the risk of her suffering personal injury in the course of her work. The starting point for deciding liability is the correct identification of that risk of personal injury for the purpose of the assessment of negligence. This involves identifying ‘the true source of potential injury’: Dederer at 351 [60]. Correct identification of the risk is necessary for the assessment of whether a reasonable person in the position of the defendant would have taken the precautions against the risk suggested by the plaintiff.

It is axiomatic that the question of whether the defendant exercised reasonable care is to be prospectively [assessed] not retrospectively… As Hayne J explained in Neindorf v Junkovic [2005] HCA 75; 80 ALJR 341 at [96], this requires the court to assess breach ‘without knowing what in fact happened’ to the plaintiff. In Vairy [v Wyong Shire Council (2005) 223 CLR 422; [2005] HCA 62)] at [126] his Honour said:

Although that judgment must be made after the event it must seek to identify what the response would have been by a person looking forward at the prospect of the risk of injury.

It is difficult, however, to correctly identify the risk of injury without knowing something of what in fact happened. Gummow J spoke of the need to “accurately identify the actual risk of injury” faced by a plaintiff: Dederer at [59]. As I have said, correct identification of the risk seeks to elucidate “the true source of potential injury”. In my judgment, these objects cannot be achieved without knowing what happened to the plaintiff. Indeed, every court always knows from the time the pleading is filed what the plaintiff said happened and what specific act or omission (failure to take precautions) she or he relies upon as constituting negligence.

It should be recognised that there is an implicit degree of artificiality in assessing breach, after the event, prospectively. But the air of artificiality becomes overwhelming if one eschews all hindsight when correctly, or accurately, identifying the risk of injury at the outset. In putting it this way I am not attempting to defy authority binding on me rather, I am attempting to apply it in the ordinary, everyday business of the trial court. It seems to me, reading Gummow J’s judgment in Dederer, especially from p 351 to 355, as a whole, the question of the proper identification of the risk is a precursor to the assessment of breach. That is to say it is a question logically anterior to, and separate from, the assessment of breach. At that preliminary point it is permissible, indeed necessary, to know what happened and what act or omission the plaintiff says constitutes negligence. These matters involve hindsight. When these things are known, one then embarks upon (returns to, as Gummow J put it: Dederer at [65]) ‘to the inquiry into the assessment of breach’. From this point on, all hindsight reasoning is impermissible because hindsight diverts attention from what reasonable care required in foresight, to whether in hindsight the defendant could have prevented the accident which befell the plaintiff.

Bearing these things in mind and before turning to the breach inquiry required by paragraphs (a) to (c) of s 5B(1) CLA, I identify the relevant risk of harm as the risk of merchandisers suffering personal injury by being struck by moving trolleys pushed by customers. Ms Vincent says that the relevant precaution which Woolworths failed to take is the provision of a plastic barricade of the type depicted in the photograph annexed to the report of Mr Colin Simpson dated 12th May 2012 (Exhibit M); or the provision of the substantial step ladder depicted in some of the photographs in Exhibit 4; or providing a helper to keep customers clear from the merchandiser while the merchandiser was absorbed in her or his duties.” [Citations omitted]

88. Applying these principles, I identify the relevant risk of harm as the risk of Mr Donald suffering personal injury through the exertion of effort and strain in the performance of repetitive heavy labouring work. As his case was refined by the trial process, the precautions for which he contended were, as stated earlier, the institution of a system of task rotation. As a subsidiary argument, he also argued that Rail Corp supplied the picks for the jackhammers which were overly shortened by being resharpened for further use after they grew blunt in the task. He said this required him to bend or stoop forward using the jackhammer, increasing the risk of injury.

89. It is necessary to say a little more about the precise nature of the task. I am satisfied that up until 13 May 2008, Mr Donald was generally teamed with a co-worker who did not perform jackhammering work, meaning that he was required to perform all of the work of that nature allocated to his team of two. That man was a Mr Gonzalez. Mr Gonzalez was a direct employee of Rail Corp. He was older than Mr Donald, probably in his fifties and was not required by Rail Corp to perform any jackhammering. It should also be noted that Mr Gonzalez had other skills. It was generally him who cut the middle section from the sleepers for all teams and he had the responsibility of placing the form work for pouring the concrete to secure the new polymer sleepers. I infer that this had the consequence that Mr Donald may have been called upon to perform more than his share of the work clearing away the rubble created by the jackhammering.

90. I said generally he was required to do all of the jackhammering because I accept that when Mr Donald first started at Rail Corp in August 2007, he was trained in the work by an experienced fettler, Mr Jordan Iordanidis. Mr Iordanidis described this as one-on-one, on-the-job training. Mr Iordanidis’ best recollection was that this process took about two weeks. At the end of it he considered that Mr Donald was properly trained and could jackhammer the required “four sleepers a possession” (Exhibit 1D9 [32]). Mr Iordanidis said that it can take between 15 to 25 minutes to jackhammer a sleeper out.

91. Mr Thompson said that the task was supposed to be shared between the two men. He thought jackhammering of the sleeper might take 10 minutes. One would have to take a break whilst the cleaner removed the rubble or pieces of sleeper that had been freed. The nature of the task was such that “you cannot continuously jackhammer when doing this work” (Exhibit 1D11 [27]). Generally, because of the limited time the teams had possession of the track, the actual work is performed between 12:45am and 3:00am with additional time cleaning up and then setting up for the next shift. Mr Thompson said that the jackhammering work was performed two nights a week. Other nights the work involved installing the polymer sleepers and concreting them. On the jackhammering nights the work was done intermittently (Exhibit 1D11 [52] – [53]). He did say the frequency of the breaks was a matter for the operator.

92. It is important to emphasise that it is not the plaintiff’s case that it was unreasonable per se to require a labourer of apparently ordinary fitness and soundness to perform jackhammering work. The complaint is about the requirement that Mr Donald perform it apparently continuously.

93. The expert evidence from ergonomists was unanimous. The safe performance of the work required “job rotation and task breaks interspersed inside short spells of work (work spells on the jackhammer are limited to a maximum of 15 – 20 minutes)” (Joint report Dr Neil Adams and Mr Mark Dohrmann 2 April 2013, Exhibit F). Dr Neil Adams and Mr Ken Horrigan did not address this issue in their joint report of 30 October 2015 (Exhibit H). They did, however, agree that “loads exceeding the 16 to 20 kilogram range were considered to represent higher risks of injury which required some form of risk minimisation measures to reduce the risks to what was considered to be an acceptable level of risk for all workers”. Both agree the use of the jackhammer “may entail postures and weight-supporting movements which carry an increased risk of injury”. In his report of 23 August 2013 (Exhibit 1D13(a), p 33), Mr Horrigan said:

“There is no doubt that regular breaks from jackhammering are needed to reduce the risk of fatigue and/or the effects of vibration. Workers were told to take breaks every 20 minutes. The easiest way to achieve this was for the team members to swap tasks every 20 minutes. There were natural process breaks where, for safety purposes, jackhammering ceases while the clean up takes place. These would occur every 10 to 20 minutes. A changeover could occur at the end of one of these natural breaks.

It is also possible for Mr Donald to initiate his own breaks every 20 minutes if a natural break in the work process or a form of break (such as a ‘smoko’) had not occurred. There is no indication that Mr Donald was not able to take breaks from the jackhammering after 20 minutes.”

152. Adding in the various allowances for overtime and under various industrial awards, he was earning very good money working for Staff Innovations at Rail Corp. On a good week, from the wage records attached to Exhibit A1 he would earn as much as $1,300 per week net. In fairly standard weeks he would earn about $880 per week net. This averages out more or less at about $1,000 per week net. This is roughly equivalent to net average weekly earnings for workers in New South Wales at the time. That figure has risen to about $1,376, allowing 20 per cent for income tax on the figures shown in the Furzer Crestani handbook.

153. I accept the argument on behalf of Staff Innovations that because he had been laid off, because of budgetary constraints, and the intervention of World Youth Day, he would have been off work anyway until about 29 October 2008. I propose to make no allowance during that period.

154. It appears to me, however, that from about then until 6 to 12 months after Dr Bentivoglio’s surgery in 2010 he would have been totally unfit for work. Since then I accept the argument that he had gradually, by objective standards, become fit for full time work within the restrictions placed upon him by Drs Bodel and Maxwell. Moreover, it is important to bear in mind that he has taken himself from the Wollongong area to Nyngan. Doubtless jobs are harder to come by there, especially for a person with an incapacity.

155. I think the appropriate approach for the past given these various factors, which to some extent are imponderable, is to calculate total loss of earnings on the basis of total incapacity consistent with my findings and reduce that amount by about one-third to take account of the other matters I have referred to.

156. I will allow an average figure of $1,188 net per week over the whole period from 29 October 2008 to 23 December 2016. This is a period of approximately 432 weeks producing a total figure of $513,216. Reduced in broad terms by about one-third, I allow figure of $350,000 for the past.

Future economic loss

158. As I have said, I accept that by now Mr Donald is fit for suitable restricted duties on a full time basis. I should say that because of his pre-existing problems of a non-orthopaedic type, I accept that he was restricted to manual or semi-skilled work at best and that this work will be harder to come by with a significant back injury and a spinal fusion. I accept the force of Staff Innovations arguments that the report of earning capacity assessment by Dr Mitchell and Ms Dillen of 2 May 2014 provides something of a guide to Mr Donald’s current capacity. However, I think it overly optimistic to expect that he could work full time as an excavator operator given his inability to sit for prolonged periods in excess of 45 minutes to 1 hour. Store work as a picker or packer may be within his capacity provided there are restrictions in relation to lifting. I am of the view he could do better than working as a process worker. Adopting a net figure derived from average weekly earnings of about $1,376 per week and assessing his residual earning capacity as $776 per week a differential of $600 is produced. I appreciate that there is artificiality in this approach. The main integers are that he was capable of earning good money in unskilled or semi-skilled work because of his strong work ethic. And many of those avenues are now closed to him because he is a manual worker with a bad back who has undergone spinal surgery. A loss of about $600 in my judgment is about the right weight. Adopting what I would regard as a robust approach in relation to Mr Donald’s earning capacity neutralises for the future the effect of the move to Nyngan. However, I accept Staff Innovations argument that it would be appropriate to adopt the figure of 20 per cent for the vicissitudes to take account of the additional difficulties Mr Donald may experience in finding work because of his pre-existing personality problems, as I would put it. The appropriate multiplier is 768.7 for a remaining working life of 26 years, producing a total of $461,220 of which 20 per cent is $92,244. I will allow $368,976 for this head of damage.

Fox v Wood

159. The amount deducted from workers’ compensation payments for income tax as at the date of the trial was a little over $55,000. I allow the figure of $55,403.

Summary of damages payable by Rail Corp before s 151Z(2) reduction

Work Injury damages payable by Staff Innovations

160. There is no issue in the case that Mr Donald has suffered a degree of permanent impairment as a result of his injury of at least 15 per cent. On the evidence it is far greater. He thus has an entitlement to 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 Civil Liability Act. Drawing on my previous findings, I assess the work injury damages as follows:

Calculation after s 151Z(2) reduction

161. But for the provisions of Division 3 of Part 5, Rail Corp would recover 10 per cent of the Civil Liability Act damages from Staff Innovations. By the modifications made under the Workers’ Compensation Act it may only recover 10 per cent of the work injury damages. It is entitled to the benefit of a reduction to the damages payable to Mr Donald in respect of the difference between the two. My calculations are as follows:

Staff Innovations s 151Z(1d) recovery

162. Staff Innovations seeks recovery of all amounts paid to, for or on behalf of Mr Donald from Rail Corp pursuant to the provisions of s151Z(1)(d) of the Workers Compensation Act. As Mr Donald has taken proceedings against Staff Innovations, but it is unlikely that he will accept satisfaction of a judgment against it given his better entitlement against Rail Corp, the amount of the indemnity is affected by the provisions of s 151Z(2)(e)(i). That is to say, the amount of the indemnity Staff Innovations can recover is for the amount of the excess of workers’ compensation payments over the amount of the statutory contribution that could be recovered from Staff Innovations as a joint tortfeasor or otherwise. The amount of the statutory contribution “that could be recovered” is a reference to the contribution recoverable under s 151Z(2)(d), that is to say, a contribution calculated “as if the whole of the damages were assessed in accordance with the provisions of” Divisions 3 of Part 5. As Staff Innovations will have continued to pay compensation to Mr Donald since judgment was reserved, the figures I was provided with at the hearing will have increased. Moreover, the effect of this judgment is that, one way or another, Staff Innovations will recover the compensation either under s 151Z(1)(b) or s 151Z(1)(d). Either way that amount will be subject to the statutory contribution payable to Rail Corp of $77,438; either directly at the suit of Rail Corp or by the operation of s 151Z(1)(d) as modified by s 151Z(2)(e)(i).

163. In these circumstances, I think it sufficient to deal with this claim by making a declaration that Staff Innovations is entitled to statutory indemnity subject to s 151Z(2)(e)(i).

Interest

164. Neither Mr Donald nor Staff Innovations articulated or calculated a claim for interest. As the figures may have changed, I will grant all parties liberty to apply in respect of my calculations. For this purpose I will delay entry of judgment.

Conclusion

165. I will pronounce orders today to give effect to my reasons. However, as there has been a delay in giving judgment, I will delay entry of the orders to enable the parties to check my calculations and to make any application that may be necessary due to any change in the amount of workers’ compensation paid so far as it affects the allowance I have made, or otherwise, including in relation to interest. Moreover, this will enable me to comply with the provisions of s 23(2) Civil Liability Act and notify the parties of the terms of the award I propose to make to give them a reasonable opportunity to negotiate a structured settlement.

166. My orders are:

1. Judgment for the plaintiff against the first defendant in the sum of $1,132,579;

2. Subject to s 151A Workers Compensation Act 1987 (NSW) judgment for the plaintiff against the second defendant in the sum of $774,379;

3. Judgment for the first defendant against the second defendant on the first defendant’s cross-claim in the sum of $77,438.

4. Judgment for the second defendant against the first defendant on the second defendants claim for statutory contribution under s 5 Law Reform Miscellaneous Provisions Act 1946 (NSW) in the sum of $696,941.

5. Declare that the subject to the provisions of s 151Z(2)(e)(i) and order 4 hereof, the second defendant is entitled to statutory indemnity from the first defendant for all amounts paid to, for or on behalf of the plaintiff under the Workers’ Compensation Act, s 151Z(1)(d) of that Act.

6. The first defendant to pay the plaintiff’s costs of the proceedings;

7. The second defendant to pay the plaintiff’s costs of the proceedings in accordance with the provisions of the Work Injury Management and Workers’ Compensation Act 1998 (NSW) and the regulations made thereunder;

8. The first defendant and second defendant to bear their own costs of the cross-claims;

9. Defer entry of judgment until 13 January 2017;

10. Grant the parties liberty to apply in respect of damages, calculations and costs which liberty is to be exercised by notice by email to my associate by 1 pm on 10 January 2017.

11. Fix the matter for directions before me at 10 am on Friday 13 January 2017;

12. If agreement is reached on outstanding matters, the parties are to bring in short minutes of order giving effect to their agreement.

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Decision last updated: 09 January 2017