Baldwin v LCL Cargo Services Pty Ltd - [2003] WADC 45

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: BALDWIN -v- LCL CARGO SERVICES PTY LTD & ANOR [2003] WADC 45

CORAM: COMMISSIONER EATON

HEARD: 1 & 2 OCTOBER 2002

DELIVERED : 6 MARCH 2003

FILE NO/S: CIV 1063 of 2000

BETWEEN: DANIEL STEWART BALDWIN
Plaintiff
AND
LCL CARGO SERVICES PTY LTD
First Defendant
PEMBURY HOLDINGS PTY LTD
Second Defendant

Catchwords:

Tort - Negligence - Personal injury at work - Soft tissue injury to the lumbar spine - Damages

Legislation:

Evidence Act 1906

Occupiers' Liability Act 1985

Workers' Compensation and Rehabilitation Act 1981

Result:

Judgment for the plaintiff against the second defendant

Representation:

Counsel:

Plaintiff:     Mr K J Bradford
First Defendant              :     Mr D R Clyne
Second Defendant         :     No appearance

Solicitors:

Plaintiff:     Bradford & Co
First Defendant              :     Basile Hawkins
Second Defendant         :     No appearance

Case(s) referred to in judgment(s):

Building Workers Industrial Union of Australia & Ors v Odco Pty Ltd (1991) 29 FCR 104.
Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520.
Canterbury Municipal Council v Taylor & Ors [2002] NSWCA 24.
Leighton Contractors Pty Ltd v Mohamad & Ors; State Rail Authority of New South v Mohamad & Ors [2001] NSWCA 453.
Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313.
State Rail Authority of New South Wales v Barnes [2001] NSWCA 133.

Case(s) also cited:

Hillcoat v Keymon Pty Ltd (2002) A Tort Rep 81-642
Jones v Bartlett (2000) 75 ALJR 1
Modbury Triangle Shopping Centre v Anzil (2001) 176 ALR 411
Stevens v Brodribb Sawmilling Company Pty Ltd (1986) 160 CLR 16
W D & H O Wills v State Rail Authority (1998) A Tort Rep 81-473

COMMISSIONER EATON: The plaintiff was born on 24 February 1978. At the time of trial he was aged 24 years. At the completion of his secondary schooling the plaintiff, in early 1996, commenced study in environmental design and architecture at the University of Western Australia. He soon realised that he was not suited to that course and at the end of the second semester of that year, having spoken to the sub‑Dean of the faculty, he discontinued. Thereafter he took various part‑time or casual jobs which included working as a waiter in a restaurant and as a bar attendant in a hotel.
In August of 1997 the plaintiff began a nine month course in audio engineering at an institution called the School of Audio Engineering. Having completed that course in June or July of 1988 he was awarded a certificate Level IV in Audio Engineering. While undertaking that course the plaintiff worked as a delivery driver for Pizza Hut. Having obtained a certificate he then sought work in the entertainment industry. Not able to find work in the short term he responded to an advertisement for a forklift driver placed by a company called Catalyst Recruitment Systems Pty Ltd. He had obtained a licence to drive a forklift while working for Healy Airconditioning during his summer school holidays in years 11 and 12. The plaintiff attended at the office of Catalyst Recruitment Systems, completed a computer‑based aptitude test and was interviewed. Catalyst Recruitment Systems recruit people either as labourers or with specific skills and from those recruited contract out individuals to provide either labour and/or skills according to the particular task to be undertaken.
To the best of the plaintiff's recollection he, having been accepted by Catalyst Recruitment Systems, was contacted by them on the following day to attend at premises at 54 Miguel Road, Bibra Lake and there, at the rear of the premises, to report to a Mr Phelps. The premises were those of the first defendant. The task to be undertaken was the loading of a container with railway sleepers. Catalyst Recruitment Systems had contracted with the second defendant to provide four men to undertake that task. The company's records indicate that on 2 October 1998 the plaintiff worked seven hours from 8.00 am until 3.00 pm. As instructed by Catalyst Recruitment Systems he reported for work on that day and met with Mr Phelps. At the rear of the first defendant's premises was a pile of railway sleepers stacked in bundles of 20 or 25 held together by metal straps and an empty sea container.
When all four persons provided by Catalyst Recruitment Systems had arrived Mr Phelps gave instructions as to the cutting of the metal straps and selection of the best sleepers from the bundles for loading into the sea container. He also gave instructions as to how the sleepers were to be loaded into the container in what the plaintiff described as "a ladder‑type formation". The sea container was open at one end and on top. Mr Phelps gave no instructions as to safety and the only equipment provided by him was a pair of tin snips for cutting the metal straps. The sleepers were about 2 m long and weighed about 50 kg each. Those that were not of appropriate quality were to be put to one side. The four men, including the plaintiff, worked manually taking selected sleepers from the pile and placing them in accordance with their instructions inside the container. They had a mid‑morning break of about 15 minutes and about half an hour for lunch.
As the stacked sleepers in the container got higher the lifting became more difficult. Generally two men would take a sleeper, one on each end, carry it from the pile to the container and manoeuvre themselves in order to place the sleeper in position. The entrance to the container was several metres from the pile of sleepers. As the stack in the container got higher three men were involved in the positioning of a sleeper with two on the floor of the container pushing the sleeper upwards and a third on the top of the stack pulling and manoeuvring. The plaintiff was shorter and younger than the others so more often than not he was the one on the top of the stack. He did that work at the end of the job when the container was nearly full.
From time to time the four men received the assistance of a forklift driver who was an employee of the first defendant. According to the plaintiff the forklift driver was in and out of the various warehouses on the premises. He assisted by moving some of the bundles of sleepers closer to the sea container and later, as the stack in the container got higher, the plaintiff and his co‑workers would place sleepers onto the tines of the forklift and the forklift driver would then take them to the container, raise the tines to the height of the container and by tilting the tines drop the sleepers onto the top of the stack so they could then be manually arranged. The plaintiff said that the forklift driver assisted on more than ten occasions during the course of the work. He would assist for about 10 minutes at a time and then return to whatever other duties he had. When the forklift driver was not available to assist the plaintiff and his co‑workers loaded the sleepers manually.
The plaintiff put in a hard day's work and, as the work progressed and became more awkward, he grew more tired. He began to feel the pain of exertion in his back, arms and legs after about two or three hours. By about 3.00 in the afternoon the container was loaded to the top. The latter stages of loading were, for the plaintiff, the most tiring and difficult.
After the job was complete the plaintiff went home feeling stiff and sore. He woke the next day with pain in his back and left leg. After a few days he visited a chiropractor by the name of Gavin Cochrane. Several days later the plaintiff was contacted by Catalyst Recruitment Systems and sent again to the premises of LCL Cargo Services this time to work for that company at its premises unloading sea containers onto pallets to be placed in a warehouse by a forklift driver. That work began on 12 October 1998. From and including that day until 23 October 1998 the plaintiff worked for nine days unloading containers at the premises of LCL Cargo Services.
The plaintiff's pain in his back and left leg continued to trouble him. The chiropractic treatment did not alleviate the problem. On 29 October 1998 following the advice of the chiropractor the plaintiff attended his general practitioner, Dr J W Prott. On 18 January 1999 Dr Prott issued a first medical certificate noting that the plaintiff's description of how the disability occurred was "experienced low back pain and left hamstring pain after loading container with sleepers." He noted that he had referred the plaintiff to a neurosurgeon, Mr Peter Watson.
On 28 January 1999 Mr Watson reported to Dr Prott, referring to a CT scan taken on 23 December 1998 which, he said, demonstrated a left posterolateral disc herniation with left S1 root compression. Mr Watson noted that with further rest and general exercises the plaintiff's left leg pain had ceased but that his lower back pain persisted.

The action

On 27 April 2000 the plaintiff, by a writ of summons in this Court sued LCL Cargo Services Pty Ltd for damages for negligence. On 14 June 2000 the first defendant entered an appearance to the writ and on 20 October 2000 filed a defence and third party notice against Pembury Holdings Pty Ltd. The plaintiff subsequently amended his writ of summons and statement of claim to join Pembury Holdings Pty Ltd as a second defendant.
On the first day of trial, on the application of counsel for the plaintiff, I granted leave to further amend the plaintiff's statement of claim. By that statement of claim the plaintiff alleges that, at all material times, the plaintiff was employed by Catalyst Recruitment Systems as a labourer and that his services were hired by that company to the second defendant in order for the plaintiff to perform labour for the second defendant at the first defendant's premises at Miguel Road, Bibra Lake. The plaintiff further alleges that at all material times he was subject to the direction and control of the first and second defendants in the performance of his duties, that the first defendant had the care, management and control of entrants to the premises and activities performed on the premises and that the first defendant participated and assisted with the activities of the second defendant on the premises. By way of particulars the plaintiff asserted that a forklift driver, acting in the course and scope of his employment with the first defendant, assisted in moving railway sleepers by using the forklift owned by the first defendant. He further asserts that on 2 October 1998 he was required at the premises referred to by the first and second defendants to lift heavy and awkward railway sleepers for a period of approximately eight hours during which time he suffered pain and injury.
The plaintiff alleges that the accident occurred as a result of the negligence of the first and second defendants and alleges, in the alternative, that the accident occurred as a result of a breach of s 5 of the Occupiers' Liability Act 1985 on the part of the first defendant, its servants or agents.
On the first day of trial I gave leave to the first defendant to re‑amend its defence. The first defendant asserted that the plaintiff was subject to the direction and control of the second defendant only in the performance of his duties. The first defendant asserted further that no damages might be awarded against it pursuant to s 93E(13) of the Workers' Compensation and Rehabilitation Act 1981, the plaintiff having redeemed his workers' compensation entitlements pursuant to s 67 of that Act on 19 July 2002. The first defendant denied that it had the care, control and management of entrants to the premises and activities performed on the premises and that it participated and assisted with the activities of the second defendant on the premises. The first defendant denied each and every particular of negligence and/or breach of duty pleaded by the plaintiff repeating that it was the second defendant who hired the plaintiff and instructed and directed the plaintiff on what work had to be completed on 2 October 1998. The first defendant's defence concluded with a general denial of the plaintiff being entitled to the relief claimed or any relief at all.
The second defendant Pembury Holdings Pty Ltd had been represented by Arns & Associates, solicitors. On the application of that firm dated 3 April 2002 an order was made on 16 April 2002 that Arns & Associates cease to be the solicitors on the record. It is the case that Brian Phelps, a director of the second defendant, died at Mounts Bay Hospital in Perth on 23 March 2002. Counsel for the plaintiff informed me that all proper notice of the trial had been given to the second defendant. There was no appearance at trial by the second defendant. Its defence denied that it was negligent as alleged by the plaintiff or at all.
In summary the plaintiff alleges that his injury is the result of the negligence of both the first and second defendants and that, in the alternative, his injury resulted from a breach by the first defendant of its obligations to him pursuant to the provisions of the Occupiers' Liability Act 1985. The first defendant denies that it was negligent as alleged, that it was in breach of its obligations under that Act and asserts that if the plaintiff is found to have been, at the material time, subject to the direction and control of the first defendant in the performance of his duties then Part IV Division 2 of the Workers' Compensation and Rehabilitation Act 1981 applies to the action and that no damages may be awarded against the first defendant, the plaintiff having redeemed his workers' compensation entitlements pursuant to s 67 of the Act.

The Occupiers' Liability Act 1985

Section 5 of the Act provides that the care which an occupier of premises is required by reason of the occupation or control of the premises to show towards a person entering on the premises in respect of dangers which are due to the state of the premises or to anything done or omitted to be done on the premises and for which the occupier is by law responsible shall, except insofar as he is entitled to and does extend, restrict, modify or exclude by agreement or otherwise, his obligations towards that person, be such care as in all the circumstances of the case is reasonable to see that that person will not suffer injury or damage by reason of any such danger. The section further provides that in determining whether an occupier of premises has discharged his duty of care, consideration be given to:
"(a)the gravity and likelihood of the probable injury;
(b)the circumstances of the entry onto the premises;
(c)the nature of the premises;
(d)the knowledge which the occupier of premises has or ought to have of the likelihood of persons or property being on the premises;
(e)the age of the person entering the premises;
(f)the ability of the person entering the premises to appreciate the danger; and
(g)the burden on the occupier of eliminating the danger or protecting the person entering the premises from the danger as compared to the risk of the danger to the person."

Workers' Compensation and Rehabilitation Act 1981

Section 93E(13) referred to in par 3(c)(ii) of the re‑amended defence of the first defendant provides:
"If the liability for an incapacity resulting from the disability has been redeemed under section 67, damages are not to be awarded in respect of the liability."
Section 67 of that Act provides that where weekly payments for a permanent total or permanent partial incapacity resulting from a disability have continued for not less than six months the liability for the incapacity is to be redeemed by the payment of a lump sum if the worker and the employer agree to the redemption and on the amount of the lump sum and a memorandum of the agreement is registered under provision 7 of the Act. The term "employer" is defined to include any body of persons, corporate or unincorporated, and the legal personal representative of a deceased employer, and, where the services of a worker are temporarily lent or let on hire to another person by the person with whom the worker has entered into a contract of employment the latter shall, for the purposes of the Act, be deemed to continue to be the employer of the worker whilst he is working for that other person.

The pleadings

As finally amended the plaintiff's statement of claim alleged that the plaintiff was employed by Catalyst Recruitment Systems as a labourer and that Catalyst hired the services of the plaintiff to the second defendant in order that the plaintiff could perform labour for the second defendant. The first defendant admits that the plaintiff was employed by Catalyst Recruitment Systems as a labourer and that the services of the plaintiff were hired by the second defendant. In the circumstances of this case and having regard to the terms of the definition of "employer" mentioned above Catalyst Recruitment Systems would be deemed to continue to be the employer of the plaintiff while he worked for the second defendant and, for that matter, later while he worked for the first defendant.
What is at issue between the plaintiff and the first defendant are the allegations by the plaintiff that he was subject to the direction and control of both the first and second defendants in the performance of his duties at the first defendant's premises on 2 October 1998, that the first defendant had the care, management and control of entrants to the premises and activities performed on the premises and that the first defendant participated and assisted with the activities of the second defendant on the premises on that day.
The plaintiff particularises the alleged participation and assistance of the first defendant by referring to the activities of a forklift driver, allegedly in the employ of the first defendant, who, acting in the course and scope of his employment with the first defendant, assisted in moving the railway sleepers referred to by using a forklift owned by the first defendant.
The alleged negligence of the first and second defendants was particularised by the plaintiff as follows:
"6.1Allowed, permitted, caused and required the plaintiff to lift very heavy and awkward railway sleepers for a period of 8 hours which was unsafe in all the circumstances.
6.2Failed to provide the plaintiff with adequate or sufficient lifting equipment.
6.3Failed to provide the plaintiff with sufficient or adequate assistance.
6.4Failed to ensure that the premises were safe for the plaintiff to perform the duties of lifting the railway sleepers.
6.5Failed to warn or advise the plaintiff of the danger associated with lifting the railway sleepers.
6.6Failed to provide the plaintiff with any or any adequate supervision.
6.7Failed to provide the plaintiff with any or adequate instruction or training."
In support of his allegation in the alternative that the first defendant was in breach of s 5 of the Occupiers' Liability Act 1985 the plaintiff repeated the particulars referred to above and alleged that, in those circumstances so particularised, the first defendant failed to exercise adequate care, control and management of the activities on the premises.
By their defences the first and second defendants deny each and every particular of the alleged negligence and/or breach of duty and generally deny the remainder of the plaintiff's statement of claim and that the plaintiff is entitled to the relief claimed or any relief at all.

The relationship between Catalyst Recruitment Systems and the plaintiff

The first defendant called Mark Anthony Gilham who gave evidence that he was the manager of Catalyst Recruitment Systems in Western Australia and had been so for about five years. He confirmed that in 1998 he interviewed the plaintiff. He explained his company's business as follows:
"Catalyst recruit people for a wide variety of tasks and we generally employ people for all sorts of casual-type work, general labouring, truck driving, forklift driving, depending upon their skills."

Mr Gilham confirmed that the first job assigned to the plaintiff was to work, along with four others on the books of his company, for the second defendant loading a container with railway sleepers. The instructions given to the plaintiff were to go to a particular address and report to Mr Brian Phelps to load the container with railway sleepers by hand along with the other three. He confirmed that the timesheets for the relevant job indicated that the plaintiff worked at that job on 2 October 1998 for a period of seven hours from 8.00 am to 3.00 pm. In cross‑examination Mr Gilham confirmed that the relationship between Catalyst Recruitment Systems and the second defendant was "a straight labour‑hire relationship" on an hourly basis and that Catalyst Recruitment Systems maintained a policy of workers' compensation insurance covering the plaintiff at all times.

The relationship between the plaintiff and the first defendant

I heard evidence from one Peter Jack Beach, the general manager of the first defendant. He said that on 2 October 1998 the business of the first defendant was carried on at 54 Miguel Road, Bibra Lake. He described the company's business as follows:
"We're a warehouse and distribution, third party, logistics company … We basically store people's goods inside warehouses. We pick up their stock and then we deliver it for them.
… There's food products; there's chemicals, fertilisers, electrical goods."
At the premises there are several concrete warehouses and a large vacant area. It appears that the first defendant entered into a verbal agreement with Mr Brian Phelps on behalf of the second defendant to store a quantity of railway sleepers in a vacant area at the rear of the first defendant's premises. Mr Beach produced a tax invoice raised by the first defendant to the second defendant dated 31 October 1998 for an amount of $100 being for storage for four weeks ending 30 October 1998. Mr Beach was aware that the second defendant intended to load the sleepers into a sea container with the assistance of contract labour. So far as he was aware a sea container was loaded with sleepers and delivered to a wharf for shipping. As to 2 October 1998 Mr Beach had no recollection of the plaintiff entering the premises and took no particular interest in the activities involving the sleepers being stored for the second defendant. He admitted that he knew that the sleepers were being manually loaded into a container for the best part of the day but insisted that those activities were no business of the first defendant being the business of the second defendant supervised, he thought, by Mr Phelps. Mr Beach insisted that the first defendant stored the second defendant's sleepers for a price, that there was no relationship between the first defendant and the second defendant for the provision of the services of a forklift and driver noting that if Mr Phelps had asked for the services of a forklift and driver they would have been offered to him at a price. He insisted that, in the absence of any such agreement any assistance rendered by a forklift driver in the employ of the first defendant to the second defendant was done without his knowledge or authority. In cross‑examination Mr Beach suggested that it was not an unsafe system of work to have four men manually handling and lifting sleepers without mechanical assistance.
It follows from the foregoing that on 2 October 1998 the first defendant was the occupier of the premises at 54 Miguel Road, Bibra Lake and the plaintiff was a person who entered those premises. Although Mr Beach has no recollection of being aware of the plaintiff's entry on that day it was clear that the entry and presence of the plaintiff at the first defendant's premises on that day would have been known to the first defendant. It would also have been known, if not to Mr Beach specifically, then to the first defendant through its other servants or agents that the reason for the plaintiff's visit to the premises on that day was to carry out manual labouring work with others also hired for that purpose for the second defendant and that that work involved the lifting of a quantity of sleepers into a sea container.
Beyond those circumstances there was no relationship between the plaintiff and the first defendant of any contractual nature.

The relationship between the plaintiff and the second defendant

Although there was no appearance at trial by or for the second defendant, counsel for the first defendant tendered two written statements said to have been made by Brian John Phelps dated 18 August 1999 and 15 September 2000. I admitted those statements into evidence under the provisions of s 79C of the Evidence Act 1906. In each of the two statements Mr Phelps admits that he was, at the time of the making of the statement, a director of the second defendant. In the earlier of the two he confirmed that in October 1998 the second defendant had a quantity of timber rail sleepers, mostly jarrah, stored at the first defendant's premises at Miguel Road, Bibra Lake. He confirmed that on 2 October 1998 it was necessary for a quantity of those sleepers to be put into a 20 foot open top container and that to carry out that work he recruited labour from Catalyst Recruitment Systems. The container, when loaded, would hold 350 sleepers. He confirmed that, upon his arrival at the first defendant's premises on 2 October 1998 four labourers were waiting for him. He showed them how to select the best sleepers from the stack to be placed into the container and the way in which they were to be stacked in the container. He did not demonstrate how to lift the sleepers as one of the labourers named Greg appeared to know what he was doing in terms of lifting and the others followed. He confirmed that the job consisted of lifting and bending, that no incident was reported to him on the day, that no person complained to him about the job or the weight of the sleepers. The job was to be finished on that day and, in fact, the four labourers finished the work earlier than had been expected. At the end of the day they left in "an amicable way".
The foregoing is generally in accord with the plaintiff's evidence as to what happened on 2 October 1998 so far as Mr Phelps was concerned. Clearly, Mr Phelps supervised what was done at the first defendant's premises and gave instructions as to the way in which the four labourers were to go about their task but said nothing about lifting techniques. He confirmed that they were given a smoko break and a lunch break.
While the plaintiff and his fellow workers completed the task for and under the direction of the second defendant there was no contractual relationship as between the plaintiff and the second defendant. The case of Building Workers Industrial Union of Australia & Ors v Odco Pty Ltd (1991) 29 FCR 104 is one in which the respondent Odco Pty Ltd carried on business in Victoria under the name "Trouble Shooters Available" a business of supplying labour to builders, construction managers and contractors in the building industry. As with Catalyst Recruitment Systems, Odco conducted interviews with prospective employees placing successful applicants "on the books of the company" which meant that they were available to be offered work, from time to time, at some particular site for a particular client of Odco. The question was, in those circumstances, whether there was any contract of employment as between the worker and the builder client. It was clear on the evidence in that case that as between Odco, the builder client and the worker it was always intended that the builder client would remain liable to pay Odco for all work performed by the worker, whenever it might be done and that Odco would be liable to pay the worker for all such work, at the rate which it had agreed with him or her, whether or not it received payment therefore from the builder client. The client was not always aware of that rate as distinct from the total amount per hour which the client was liable to pay to Odco. The court, comprising Wilcox, Burchett and Ryan JJ noted at 114:
"The element of consideration which is essential to a contract of employment is the promise by the presumptive employer to pay for service as and when the service is rendered. …
In this case, on the evidence, there was no promise of payment of periodical sums by the builder to the worker, and no agreement between the builder and the worker as to what those sums should be. The builder's only obligation was to pay Troubleshooters. The worker's only entitlement was against Troubleshooters, and in accordance with a different measure."
The court found that there was no contract of employment between the tradesman or the worker, on the one hand, and the builder on the other.
The circumstances are much the same as those of the present case. Catalyst Recruitment Systems interviewed and employed the plaintiff, placing him on its books. There was no contractual relationship between the plaintiff and the second defendant. There was a contractual relationship between the second defendant and Catalyst Recruitment Systems whereby the second defendant paid an hourly rate to Catalyst Recruitment Systems. The plaintiff looked to Catalyst Recruitment Systems to be paid for the work carried out by him.
Before leaving the question of the relationship between the plaintiff and the second defendant I should have regard to the question of whether or not, under the provisions of the Workers' Compensation and Rehabilitation Act 1981, the second defendant is deemed to be the employer of the plaintiff. Section 175(1) of that Act provides:
"Where a person (in this section referred to as the principal) contracts with another person (in this section referred to as the contractor) for the execution of any work by or under the contractor and, in the execution of the work, a worker is employed by the contractor, both the principal and the contractor are, for the purposes of this Act, deemed to be employers of the worker so employed and are jointly and severally liable to pay any compensation which the contractor if he were the sole employer would be liable to pay under this Act."
In my view the section quoted does not apply to the contract between the second defendant and Catalyst Recruitment Systems. The second defendant contracted with Catalyst Recruitment Systems for the provision of personnel to undertake labouring work and the second defendant agreed to pay Catalyst Recruitment Systems an hourly rate. This was not a contract for the execution of any work by or under the contractor. The limit of the obligation of Catalyst Recruitment Systems to the second defendant under their contract was to provide persons capable of undertaking labouring work for a day with those persons reporting to a site specified by the second defendant at a time specified by the second defendant to undertake work at the direction of the second defendant. I conclude, therefore, that the second defendant is not deemed by that section of the Act to be the employer of the plaintiff.

The plaintiff's redemption of Workers' Compensation entitlements

In Building Workers Industrial Union v Odco (supra) the court also found that the relationship between Odco and the workers on its books was not that of employer and employee. In Western Australia by virtue of s 5 of the Workers' Compensation and Rehabilitation Act 1981 which provides, inter alia, that the term "employer" includes a corporation which hires the services of a worker to another person, Catalyst Recruitment Systems is, for the purposes of the Act, deemed to continue to be the employer of the worker whilst he is working for that other person.
Putting aside the question of whether or not there was a contract of employment between the plaintiff and Catalyst Recruitment Systems it is the case that, at the relevant time, that company held a workers' compensation policy covering the plaintiff. Mr Gilham, the West Australian manager of that company, confirmed that in January of 1999 the plaintiff telephoned him and requested a workers' compensation claim form indicating the date of his injury. It appears that the plaintiff made a claim on the policy and began receiving weekly payments. He also had expenses associated with his injury paid. In total he received weekly payments of $33,393.87. By a written agreement dated 19 July 2002 between the plaintiff and Catalyst Recruitment Systems the plaintiff agreed to accept a lump sum of $10,000 thereby redeeming his rights under the Act in respect of the disability referred to. In accordance with the provisions of the Act, on 19 July 2002 he signed a statement acknowledging that upon recording of the agreement under s 76 of the Act he would have no further entitlement to compensation under the Act for weekly payments or expenses and that he would forfeit any entitlement he may have to pursue common law damages under s 93D of the Act in respect of the injury referred to in the agreement. The statement concludes: "That is, in general terms, the worker forfeits any entitlement they have to sue their employer for civil damages." The context of the documents referred to is that the employer is Catalyst Recruitment Systems and the worker was the plaintiff.

Liability

I find, as a matter of fact, that the plaintiff, having arrived at the first defendant's premises, was, as alleged by him, subject to the direction and control of the second defendant, that direction and control being exercised by its director Mr Phelps. The plaintiff and his three co‑workers were to undertake a task for the second defendant and fully understood that they were to report to Mr Phelps at the first defendant's premises and to do as he directed. As it happens, that task involved prolonged manual work lifting 50 kilogram sleepers and manoeuvring them into place in the confines of a sea container in accordance with Mr Phelps' directions. Having four men available to move a quantity of sleepers from one place to another is not, per se, fraught with risk. It is notorious, however, that persistent heavy lifting and manoeuvring of weighty objects can lead to injury. It is clear that the work undertaken at the direction of the second defendant involved persistent heavy lifting and manoeuvring, which became more difficult as the work went on and the stack in the container got higher. It appears that the second defendant made no enquiry of the plaintiff as to his experience in manual handling and as to whether he had any training in that regard. The only tool provided by the second defendant to the plaintiff and his co‑workers was a pair of tin‑snips. Although mechanical assistance in the form of a forklift was available at the first defendant's premises for hire to the second defendant the second defendant chose not to go to the expense of hiring a forklift or other mechanical aid to assist in the task.
In such circumstances was the second defendant obliged to take any steps to prevent the plaintiff from injuring himself? Professor Fleming in "The Law of Torts" 8th ed at 151 said:
"Ordinarily, it is true, the law does not demand that one interfere with the activities of another for the purpose of preventing harm to him or strangers, but certain relations call for special assurances of safety in accordance with prevailing assumptions of social responsibility. Such a special relation may subsist either between the defendant and the injured person who is entitled to rely upon him for protection or between the defendant and a third party who is subject to the former's control.
… Usually, the duty is to protect the plaintiff from dangers threatened by others, but it may also be to protect the plaintiff from injuring himself."
Professor Fleming also mentions that a relevant factor is that the defendant stands to gain an economic benefit from his relation with the plaintiff. I assume that, given that the loaded sea container was to be taken to a wharf for shipping, the task being undertaken by the plaintiff and his co‑workers was in the course of the second defendant's business.
If one takes upon him or herself the direction and control of persons undertaking a task such as that undertaken by the plaintiff for the second defendant those circumstances give rise to a duty on the part of the second defendant to ensure that those undertaking the task are not subjected to risk or harm in doing so. The injury suffered by the plaintiff was, in all the circumstances, a foreseeable one. I find that the second defendant owed a duty to take reasonable care in directing and controlling the plaintiff to ensure that the plaintiff undertook the task in hand safely and with minimal risk of injury. Having regard to the plaintiff's particulars of negligence alleged against both the first and second defendants in par 6 of his re‑amended statement of claim I find that the second defendant failed to provide the plaintiff with adequate or sufficient lifting equipment, failed to warn or advise the plaintiff of the dangers associated with the task to be undertaken, failed to provide the plaintiff with adequate supervision and failed to provide the plaintiff with any instruction or training as to how the task could be undertaken safely and with minimal risk. I find that the injury suffered by the plaintiff as diagnosed by Mr Watson on 28 January 1999 resulted from the negligence of the second defendant through its servant or agent Mr Phelps.
By par 4(iii) of the plaintiff's re‑amended statement of claim he alleges that he was subject to the direction and control of both the first and second defendants in the performance of his duties on the day in question. The plaintiff entered the first defendant's premises for the specific purpose of reporting to Mr Phelps and thereafter undertaking work at the direction and control of Mr Phelps on behalf of the second defendant. I find that the plaintiff was not, as alleged by him, subject to the direction and control of the first defendant in the performance of his duty.
At par 4(iv) of the plaintiff's re‑amended statement of claim he alleges that the first defendant had the care, management and control of entrants to the premises and activities performed on the premises. While in a general sense the first defendant, as the owner and occupier of the premises, had the care, management and control of entrants to the premises it is clear that the first defendant exercised no care, management or control over the particular activities performed at the premises by the plaintiff and his co‑workers who were, as I have said, under the particular direction and control of the second defendant. In order to found the allegation of negligence against the first defendant at common law the plaintiff asserts at par 4(v) of his re‑amended statement of claim that the first defendant participated and assisted with the activities of the second defendant on the premises. That circumstance alone would not, in my view, give rise to any relationship as between the first defendant and the plaintiff which might found a duty on the part of the first defendant to ensure that the plaintiff was not subject to risk or harm in the course of his work undertaken under the direction and control of the second defendant. It does appear as though a forklift driver in the employ of the first defendant did, from time to time, assist with movement of the sleepers and did so without the knowledge of and apparently without any instruction from his employer to provide such assistance. As mentioned by Mr Beach, had the second defendant requested the first defendant to provide the assistance of a forklift and driver that service would have been provided at a fee. There was no such agreement or arrangement. It appears that the forklift driver volunteered the assistance of his machine and skill from time to time. The mere fact of that voluntary assistance would not, I find, afford a foundation for attributing a duty of care for the plaintiff to the first defendant beyond that which is cast upon the first defendant in its capacity as occupier of the premises. It follows, therefore, that the plaintiff's allegation of negligence against the first defendant must fail.

In the alternative the plaintiff asserts that his injury was the result of a breach of s 5 of the Occupiers' Liability Act 1985 on the part of the first defendant, its servants or agents. By way of particulars in his re‑amended statement of claim the plaintiff repeats those contained within par 6 of that document, being the particulars of negligence alleged against both the first and second defendants already referred to. I have already, in this judgment, referred to the relevant provisions of the Occupiers' Liability Act 1985. There can be no doubt that the first defendant was in occupation of the premises and admitted the plaintiff to the premises. Beyond doing so the plaintiff could not, except in a very broad sense, be said to have been under the control of the first defendant while at its premises. The plaintiff's purpose in being at the premises was not to submit himself to the control or direction of the first defendant but rather to that of the second defendant. The injury suffered by the plaintiff was the direct result of his exertions while under the control and direction of the second defendant and did not arise by reason of any dangers due to the state of the first defendant's premises or to anything done or omitted to be done on the premises for which the first defendant was by law responsible. Far from there being any danger due to the state of the first defendant's premises the danger faced by the plaintiff and his co‑workers arose out of the nature of the task to be undertaken by them while under the control and direction of the second defendant. Having regard to those circumstances and the various factors referred to in s 5 of the Act I find that the first defendant was not in breach of its duty of care to the plaintiff as alleged by him.
In support of his case against the first defendant counsel for the plaintiff referred me to Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520. Having referred to categories of case in which the duty to take reasonable care under the ordinary law of negligence is non‑delegable Mason CJ, Deane, Dawson, Toohey and Gaudron JJ said at 550:
"In most, though conceivably not all, of such categories of case, the common 'element in the relationship between the parties which generates [the] special responsibility or duty to see that care is taken' is that 'the person on whom [the duty] is imposed has undertaken the care, supervision or control of the person or property of another or is so placed in relation to that person or his property as to assume a particular responsibility for his or its safety, in circumstances where the person affected might reasonably expect that due care will be exercised.' It will be convenient to refer to that common element as 'the central element of control'. Viewed from the perspective of the person to whom the duty is owed, the relationship of proximity giving rise to the non‑delegable duty of care in such cases is marked by special dependence or vulnerability on the part of that person."
It could not be said of the first defendant that it had undertaken the care, supervision or control of the plaintiff in relation to the task to be undertaken by the plaintiff. Nor could it be said that the entry of the plaintiff onto the first defendant's premises was marked by any special dependence or vulnerability on the part of the plaintiff.
In Burnie Port Authority v General Jones Pty Ltd the Authority, as occupier of premises at which General Jones stored a large quantity of frozen vegetables, allowed a flammable material to be stored at its premises and allowed welding work to be carried out at those premises in circumstances where it was essential that care be exercise to ensure that the flammable material was not ignited. That is what did happen and in the course of the fire which destroyed the premises General Jones lost its large quantity of frozen vegetables. In those circumstances the court held that the Authority owed to General Jones a duty of care which was non‑delegable in the sense that it extended to ensuring that the contractor engaged to undertake the welding work took reasonable care to prevent the flammable material being set alight as a result of those welding activities. The court held that the Authority was liable to General Jones pursuant to ordinary principles of negligence for the damage which General Jones sustained. Certainly, the welding activity undertaken by the sub‑contractor was dangerous having regard to the presence of the stored flammable material. The court found, not surprisingly, that the introduction of the flammable material called for special precautions to be taken to avoid any risk of a conflagration. The combined effect of the magnitude of the foreseeable risk of an accident happening and the magnitude of the foreseeable potential injury or damage if an accident did occur was such that an ordinary person acting reasonably would consider it necessary to exercise special care or to take special precautions in relation to it.
The circumstances of the plaintiff's entry to the first defendant's premises and the nature of the task to be undertaken by the plaintiff at those premises did not, in my view, give rise to any obligation on the part of the first defendant to take steps to ensure that the plaintiff, in the course of carrying out the task, would not injure himself in the way that he did.
Counsel for the plaintiff submitted that the decision in Burnie Port Authority v General Jones Pty Ltd was followed with approval in Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313. In that case a 9‑year‑old child was electrocuted when she attempted to turn off an outside tap at the rental home occupied by she and her parents under an agreement for a periodic tenancy. Prior to her injury her mother had complained to the landlord that the stove at the premises did not work. The landlord engaged an electrical contractor with whom it usually dealt to carry out repairs. He did so negligently and, as a result, the child was electrocuted and injured. It was held by Brennan CJ, Toohey, Gaudron and McHugh JJ with Dawson, Gummow and Kirby JJ dissenting that in the circumstances the landlord was liable for breach of its duty of care. All Judges, those in the majority and those in dissent, referred to Burnie Port Authority v General Jones Pty Ltd. Brennan CJ noted that (at 332):
"Mason J essayed a definition of the material relationships that would give rise to a non‑delegable duty in Kondis v State Transport Authority (1984) 154 CLR 672 at 685 – 687:
'[T]he special duty arises because the person on whom it is imposed has undertaken the care, supervision or control of the person or property of another or is so placed in relation to that person or property as to assume a particular responsibility for his or its safety, in circumstances where the person affected might reasonably expect that due care will be exercised.'
In cases where this special duty is imposed on a person in relation to a particular task, that person is under a duty not only to use reasonable care but to ensure that reasonable care is used by any independent contractor whom he employs to perform that task. Moreover, if the task which an independent contractor is employed to perform carries an inherent risk of damage to the person or property of another and the risk eventuates and causes such damage, the employer may be liable even though the independent contractor exercised reasonable care in doing what he was employed to do because the employer authorised the running of the risk and the employer may be in breach of his own duty for failing to take the necessary steps to avoid the risk which he authorised."
In the case before me I reiterate that the first defendant did not undertake the care, supervision or control of the plaintiff in relation to the task to be performed by the plaintiff and his co‑workers and did not assume any particular responsibility for the plaintiff's safety in that regard in circumstances where the plaintiff might reasonably expect that the first defendant, as opposed to the second defendant, would exercise due care. Certainly, the second defendant was not an independent contractor of the first defendant and was not employed by the first defendant to perform any task associated with its business. This is not a case, in my view, where any non‑delegable duty would arise.
Counsel for the plaintiff, in the case against the first defendant, relies on the quite recent case of Canterbury Municipal Council v Taylor & Ors [2002] NSWCA 24 being a judgment of the New South Wales Court of Appeal handed down on 5 March 2002. The appellant, the Canterbury Municipal Council, owned and operated a velodrome with an inner field on which touch football was played whilst cyclists used the surrounding velodrome for practice. The respondent, Mr Taylor, was a cyclist who was training on the velodrome while touch football was being played simultaneously. One of the footballers stepped back onto the velodrome, was struck by the respondent's bicycle and later died. The respondent suffered physical and psychological injuries resulting from the collision. It was held that the Council, by agreeing to touch football being played on the inner field and by tacitly authorising the cyclist to use the velodrome for practice on Sundays and by promoting the velodrome and encouraging persons to use it for cycling and touch football, came under a duty to take reasonable care to avoid injury to football players and cyclists. Reasonable measures were available to prevent the simultaneous dual use of the velodrome, including erecting official signs prohibiting such use, the placing of portable barriers or, directing council employees to monitor that such use did not take place. Ipp J found that the Council knew or should have known that on 6 May 1990 when the accident did occur there was a serious risk of touch football and cycling taking place simultaneously at the velodrome and that would be fraught with danger to those persons involved in those activities. He said:
"In my opinion, in the circumstances that I have described, the appellant brought itself under a duty of care to the touch football players and cyclists who played and trained in the velodrome. As occupier of the velodrome, the appellant, by agreeing to touch football being played on the inner field on 6 May 1990, by tacitly authorising cyclists to use the velodrome for practising on Sundays, by promoting the velodrome and encouraging persons to use it for cycling and playing touch football, came under a duty to take reasonable care to avoid injury to such football players and cyclists."
He found that the trial Judge was entirely correct in holding that there was a foreseeable risk of simultaneous dual use of the velodrome by cyclists and touch football players and that the dangers of such simultaneous dual use was self‑evident.
In the present case there was no self‑evident danger. The first defendant had not, by its control, management or use of its premises created any danger such that there was a foreseeable risk of injury to the plaintiff. I find no support for the plaintiff in the case cited.
Counsel for the plaintiff referred also to State Rail Authority of New South Wales v Barnes [2001] NSWCA 133, a decision of the New South Wales Court of Appeal handed down on 9 May 2001. In that case Mr Barnes, a glazier employed by Bathurst Glass Service Pty Ltd, injured his right knee in the course of his employment. His employer had entered into a contract with the State Rail Authority of New South Wales which was the occupier of the State rail yards at Bathurst. The contract involved the restoration of railway carriages at those yards. Mr Barnes and another employee of Bathurst Glass were engaged in glazing work on those carriages for about 20 days before the accident. In order to have access to the interior of the carriages Mr Barnes and his co‑worker entered and left carriages through doors which were unlocked by an employee of the State Rail Authority for that purpose. As the carriages were not on rails adjacent to any form of platform, the method of entering and leaving them was by a ladder, which was built into the carriage at the doorway and formed part of it. On the day of the accident Mr Barnes finished work inside a carriage and then proceeded to attend to the outside of the window which required that he leave the carriage with his equipment through an unlocked door. He did so by jumping from the carriage to the surface below. He jumped, he said, because there was no ladder at the unlocked door. Upon contact with the surface below he slipped and suffered the injuries of which he complained. At the trial there was an issue as to whether there was or was not a ladder at that particular doorway. Clearly, if there had been a ladder the State Rail Authority would not have been negligent as it would have provided ready means of safe exit from the carriage. Mr Barnes' evidence that there was no ladder was accepted by the trial Judge without qualification. The Court of Appeal found that there was no basis for interfering with the trial Judge's finding that there was no ladder. Rolfe AJA at [28] observed that the State Rail Authority's personnel should have unlocked a door under which there was a ladder or provided proper means of access if there was not one. He concluded that the trial Judge's finding of negligence should stand.
The respondent had sued the State Rail Authority in negligence and for breaches of statutory duties having regard to the provisions of the Factories, Shops and Industries Act 1962 (NSW). This was not a case as asserted by counsel for the plaintiff before me, dealing with the duty of care owed by an occupier to an entrant but rather, was a case which turned on ordinary principles of negligence. If the State Rail Authority, through its employee, had unlocked a door without providing a ladder (as was found to be the case) then it forced those exiting the carriage to jump. The risk of injury to a person leaving the carriage in those circumstances was clearly foreseeable. Once there was a finding of fact that there was no ladder provided the negligence of the Authority was clear. Again, the cited case does not support the plaintiff's claim against the first defendant in the matter before me.
Finally, counsel for the plaintiff cites Leighton Contractors Pty Ltd v Mohamad & Ors; State Rail Authority of New South v Mohamad & Ors [2001] NSWCA 453. In that case the State Rail Authority of New South Wales was the occupier and owner of premises known as the Enfield Marshalling Yards. The Public Works Department of New South Wales was engaged to provide services to the Authority at those yards. The Public Works Department contracted Leighton Contractors to oversee the design, development and construction of those works. Leighton, in turn, sub‑contracted with V T & K A Coleman Pty Ltd to do part of the work. The plaintiff was employed by Coleman as a welder. On 21 April 1996 the plaintiff, with other Coleman employees, began working on a railway track at the site. They were welding and it was known that welding sparks could cause nearby inflammable vegetation to catch fire. That is, in fact, what happened. The plaintiff attempted to put the fire out with his gloves and moved backwards as he did so getting closer to what, unknown to him, was the top of a vertical embankment wall. From there he fell and suffered injury.
The State Rail Authority appealed to the Court of Appeal against the finding of liability made by the trial Judge. Priestley JA, in the Court of Appeal, noted that there was evidence before the trial Judge that at some stage prior to the accident the Authority had erected a partial fence along the wall on the eastern side of the embankment to prevent people getting onto its property, that there had been an extension of the fencing at the top of the embankment (which did not reach to the area where the plaintiff fell) to prevent people falling from it, that the Authority had gangs doing welding work on the track about 50 metres away from where the plaintiff was working at the time he fell and that from time to time the Authority took steps to control the vegetation at the side of the tracks. Further, there was evidence before the trial Judge that there were two Authority inspectors who checked the working areas where the Authority workers were working near the plaintiff on the day he fell. It is the case that the trial Judge concluded that the Authority had not abandoned the site with exclusivity to others to occupy but rather was in daily occupation, controlling entrants, as was its duty.
In that case the plaintiff was injured because welding sparks had caused nearby vegetation to catch fire. He attempted to put out the fire and in retreating from it fell over the embankment. Priestley JA noted that the Authority had in effect created the danger which caused the accident and that the vegetation which concealed the vertical drop from the embankment could have been removed by the Authority at very small cost. The Authority's appeal failed.
In the case before me there was nothing inherently dangerous about the task to be undertaken by the plaintiff and his co‑workers under the direction and control of the second defendant other than in the manner in which the task was undertaken. As I have found, it was incumbent upon the second defendant to take steps to ensure that the plaintiff and his co‑workers were not at risk of injury arising from the prolonged manual handling which was the essence of the task. The first defendant had not created any danger at its premises which gave rise to the injury to the plaintiff. Its duty to the plaintiff, an entrant to its premises, did not extend to enquiring of the second defendant as to the manner in which it would supervise the task to be undertaken and as to whether mechanical assistance was necessary in that regard. Nor did it extend to making enquiry of the plaintiff and his co‑workers as to their training in or knowledge of manual handling techniques.
The foregoing authorities cited by counsel for the plaintiff do not, in my view, assist the plaintiff in his claim against the first defendant. The fact that an employee of the first defendant may have gratuitously provided some assistance with his forklift from time to time does not impact upon the care which the first defendant, by reason of its occupation and control of the premises, was required to show to the plaintiff.

The injury

Not long after being injured the plaintiff attended upon his general practitioner, Dr J W Prott who ordered a lumbar spine x‑ray in November 1998 and a lumbar spine CT scan on 23 December 1998. He then referred the plaintiff to Mr Peter Watson, a neurosurgeon, who reported on 28 January 1999 that the plaintiff had suffered a left posterolateral disc herniation with left S1 root compression. Mr Watson confirmed that diagnosis in his most recent report of 18 September 2002. In addition, the plaintiff was seen by Mr B S Slinger, spinal surgeon, on 14 September 1999 and later on 26 September 2002. He concluded in a report of 16 September 1999 that the diagnosis was that of a soft tissue injury to the lumbar spine associated with an L5 radiculopathy consequent upon a disc protrusion or herniation. In his most recent report of 26 September 2002 he confirmed that diagnosis describing it as "acute".
On 2 October 1998, as the task of loading the sea container continued, the plaintiff felt what he thought at the time was the ordinary effects of prolonged exertion in the course of a hard day's work. He went home feeling very stiff and sore and awoke the next day with pain in his back and left leg. He was treated, first by his chiropractor and second by Dr Prott, for low back pain. On 1 November 1999 the plaintiff complained to Mr Watson of continued low back pain. On 13 March 2000 the plaintiff told Mr Watson that his low back pain continued. On 18 September 2002 Mr Watson reported that the plaintiff's main ongoing complaint was weakness and stiffness in the lower lumbar spine. He said that the previous pains in the left leg had settled and that his back pain had stabilised at levels equivalent to those in March of 2000. In September 2002 Mr Slinger reported that the leg pain had dissipated but that there was continued pain in the low back described to him by the plaintiff as "a constant constriction, with constant discomfort".

Income earning capacity

At the time of his injury the plaintiff was 20 years old. He had completed his tertiary entrance examinations at John XXIII College in 1995 and was, like many of his age, in the throes of decision making about study and career while working casual/part‑time to generate an income. In February of 1996 the plaintiff commenced study in environmental design and architecture at the University of Western Australia but by August of that year had decided that he was mistaken in his choice of study. He spoke with the sub‑dean of the faculty who allowed him to take a year off. He has not returned. He had various jobs thereafter, working as a bar attendant and waiter in a restaurant and with a firm called "Galaxy Displays". In August of 1997 the plaintiff began a Certificate of Audio Engineering at the Perth School of Audio Engineering, a nine month course. He completed the course in mid‑1998 while working part‑time as a delivery driver for Pizza Hut. Not long after that the plaintiff answered an advertisement for a forklift driver and, having completed an interview and an aptitude test, found himself on the books of Catalyst Recruitments Systems. Within days he was working for the second defendant at the premises of the first defendant.
Shortly after attending upon Mr Watson on 28 January 1999 the plaintiff lodged a workers' compensation claim and began receiving weekly payments. In total the plaintiff received weekly payments in the sum of $33,393.87, statutory allowances in the sum of $9,886.07, rehabilitation in the sum of $8,530.34 and ultimately redeemed his workers' compensation claim for the sum of $10,000.
The plaintiff arranged his own work trial with the School of Audio Engineeering for approximately six weeks in an office capacity. Thereafter he worked for Mills Records in Fremantle in mid‑2000 for about six weeks. He did a further work trial at the Compact Disc Library in Perth. The plaintiff worked there for about 16 months until July 2002 working 12 hours a week. At the beginning of 2002 the plaintiff commenced study in an information technology course at a College of Tertiary and Further Education. In evidence he told me that he was currently deciding whether to continue his studies in the computing field or to commence a course in environmental science at either Murdoch University or the University of Western Australia in 2003. In his report of 22 September 2002 Mr Slinger mentioned: "In the future he anticipates applying to UWA and Murdoch to obtain a degree in environmental science, as his father has a business in that industry in which he would seek a position." Mr Slinger concluded, in that report, that the plaintiff was not fit to return to heavy unrestricted labouring work. He confirmed that the plaintiff is fit for sedentary employment of a full‑time nature with the recommendation that he avoid any heavy labouring or lifting.
In his final report of 18 September 2002 Mr Watson shared Mr Slinger's view the plaintiff was permanently unfit for heavy manual handling. He noted also as follows:
"I believe Mr Baldwin is fit for sedentary employment. I understand he is currently working in information technology and is keen to consider work in the future in environmental sciences. While that may involve some manual work I believe Mr Baldwin would be capable of carrying out lighter duties with a restriction on the amount of bending and lifting required. I also understand Mr Baldwin's father is in that area of work and he feels that this would help his employability."
Both Mr Slinger and Mr Watson thought that no further investigation is required. Mr Watson thought there was a small chance of recurrent disc herniation which could reactivate sciatic pain in the left leg. In his report of 16 September 1999 Mr Slinger thought it was unlikely that the plaintiff would have a recurrence of his acute disc protrusion or herniation but that he was more likely to have chronic lower back symptoms.
The plaintiff was injured while doing labouring work which was an interim measure to earn an income during a period of indecision as to study and career. His inclination upon completing Year 12 was towards a university education and his inclination at the present time would appear to be the same.
When giving evidence the plaintiff said that he was highly motivated and that "I really would like to get back out there and get back into it". He told me that he could work full‑time in a sedentary position where he could do some stretching throughout the day. In relation to environmental science he confirmed that his father was a consultant in that area and that the prospects of his employment in that field were, by that reason, "greatly improved".

Damages

Prior to the injury the plaintiff had completed a nine month course in audio engineering and unsuccessfully sought work in that field. He was waiting for the festive season in the hope that work might be available then when he applied to Catalyst Recruitment Systems. Before seeing Dr Prott the plaintiff worked in a trial capacity for three days with Fremantle PA Hire. That work involved loading sound and stage lighting equipment onto a truck, unloading that equipment and setting it up on a stage. It was physical work and the plaintiff was, at the time, in pain. Dr Prott warned against physical work and suggested making a workers' compensation claim, which the plaintiff did. He was only paid $100 cash for the first day. The plaintiff explained that following his injury he sought studio work rather than work that involved lifting but was unable to obtain any, not having sufficient seniority or experience. He confirmed that it was difficult to get work as an audio engineer in Western Australia. The plaintiff's workers' compensation weekly payments ceased in March of 2001. Shortly after that he went to Centrelink seeking work in any field that might be on offer "from counter staff to clerical work to a waiter again". He was not able to obtain work. When giving evidence the plaintiff was still registered with Centrelink and receiving a Newstart allowance of $373 per fortnight.
The plaintiff's submissions in respect of quantum of damages are predicated on the proposition that he wanted to be a sound engineer following the completion of his nine month certificate course in audio engineering. The evidence is that he made some unsuccessful attempts to find work in that area prior to the injury and, after the injury, found three days work on a trial basis, two of which were unpaid. I am referred to the uncontested evidence of Charles Collins who is a qualified electrician running a business called "Expo Lighting". In a written statement of 1 October 2002 he said that he then currently employed three persons with knowledge of lighting, the setting up of platforms and positioning of display lights. He said in his statement that work was readily available in the industry and had been for several years. He was referring to the entertainment industry. The work done by his employees was physically demanding. The plaintiff's qualification was in audio engineering not lighting. His qualification was a technical one involving the theory and practice of sound recording, editing and mixing. I am invited to assume that, but for the injury, the plaintiff would have worked full‑time as a sound engineer earning between $15 and $18 per hour (being the amount that Mr Collins paid his labourers) and that a reasonable starting point for calculating his loss of earnings would be $500 net per week. That is a proposition that I do not accept. Firstly, I do not accept that the plaintiff had determined on a career as a sound engineer. Secondly, he was not at all successful in obtaining work in that field due to a combination of factors including his inexperience, youth and the very limited availability of work in the field. Thirdly, there is no evidence that, beyond his three‑day trial with Fremantle PA Hire, the plaintiff ever again attempted to find work in that field. His evidence was that, upon cessation of the workers' compensation payments, he registered with Centrelink looking for work in whatever field he felt he was capable of undertaking. Subsequently the plaintiff undertook a course in information technology and now contemplates a return to university for further tertiary study, a pathway that was contemplated in August of 1996 when the plaintiff withdrew partway through the first year of his degree course. He now embarks upon a degree course in a field in which he clearly has prospects given his father's position and contacts. The evidence of Ms Debbie Larson, labour economist, would suggest that the average earnings of an environmental scientist are presently in the region of $52,283 per annum and that, with experience, it may be possible to earn in excess of $57,693 per annum.
The probabilities are that the plaintiff will continue with and complete his tertiary degree and will work and earn in circumstances where his injury will have no impact on his ability to do so. The plaintiff has lost, by reason of the accident, his ability to engage in heavy labouring work. It is unlikely, in the future, that he will ever be required to do so. I do not accept that the work of a sound engineer, if such work were available, would fall into that category. To the extent that the plaintiff has been restricted by the injury suffered by him he has been limited to the extent that he can no longer take on heavy labouring tasks and his probable return to the completion of a tertiary degree has been, perhaps, delayed. I use the word "perhaps" because there does not on the face of things, appear to have been any reason why the plaintiff should not have resumed study at a tertiary level before 2003. The plaintiff's loss of earning capacity is relevant only insofar as it would have been or will be productive of financial loss.
In all the circumstances, I allow the plaintiff by way of damages for past loss of income the sum of $25,000 inclusive of interest and superannuation.
So far as the future is concerned, the plaintiff now intends to complete a tertiary degree in environmental science at a university thus again putting into effect his intention at the completion of his secondary schooling, albeit in a somewhat different discipline. He is likely, during the remainder of his study, to work part‑time from time to time as students do and has good prospects of employment upon attaining his degree. He will, by reason of his injury, be unable to obtain part‑time work in heavy manual labouring but I expect that he will not be hampered by that restriction. In all probability the injury will not, in future, be productive of financial loss.
It is common ground that the plaintiff received workers' compensation weekly payments of $33,393.87 by way of gross wages during the three years ended 30 June 2001. He paid tax on that amount which, his counsel suggested, amounted to $5,009 being 15 per cent of the gross sum paid. Counsel for the first defendant agreed with that calculation. Having regard to tax paid by resident individuals in the relevant years I find that the amount paid by way of workers' compensation weekly payments from Catalyst Recruitment Systems was as follows:
Year ended 30 June 1999: $5,982     Tax:      $116.40
Year ended 30 June 2000:        $16,423      Tax:   $2,184.80
Year ended 30 June 2001:        $11,088      Tax:      $864.96
$33,094$3,166.16
I allow $3,166.16 by way of the Fox v Wood component.
I allow the after tax component of weekly payments in the sum of $30,227.71 by way of past economic loss.
In addition, the plaintiff received from his employer expenses payable under cl 9, 10, 17, 19 of Schedule 1 of the Workers' Compensation and Rehabilitation Act 1981 in the sum of $18,416.41. Those expenses were variously medical expenses, physiotherapy expenses, allowances to accommodate absence from work for medical attendances, rehabilitation expenses, pharmaceutical and travelling expenses. . I allow the total amount paid for those items as special damages. As I understand the position there is no claim for future medical, pharmaceutical or treatment expenses.
It remains for me to assess general damages. The plaintiff's injury involved pain in the lower back and, initially, pain into the left hamstring muscle and buttock. The left leg pain had dissipated by the time Mr Watson reported on 28 January 1999. There was, however, intermittent recurrence of that pain thereafter but it gradually settled again. Recommended ongoing treatment included lumbar spine strengthening exercises and a swimming programme. Mr Baldwin also found benefit in yoga, tai chi and chi kung. In his most recent report Mr Watson thought that the plaintiff's prognosis was that his lower back pain would be likely to continue on at then current levels. The plaintiff described the pain in the lower back to Dr Slinger as being "a constant constriction, with constant discomfort". The plaintiff avoids analgesics, keeps himself fit with good muscle tone and otherwise maintains a healthy lifestyle. He has not undergone any surgery or hospitalisation. I award $25,000 by way of general damages.
In summary my award of damages is as follows:
Past economic loss (inclusive of workers' compensation
payments and the Fox v Wood component)                $58,394.00
General damages  $25,000.00
Special damages  $18,416.41
$101,810.41
Subject to any comment that counsel may have I propose that there be judgment for the plaintiff against the second defendant and I award damages in that regard in the sum of $101,810.41. It follows from the foregoing that the plaintiff's claim against the first defendant must fail.