Brozinic v ISS Facility Services Australia Ltd - [2014] ACTSC 8

DRAGO BROZINIC v ISS FACILITY SERVICES AUSTRALIA LIMITED and THE FEDERAL CAPITAL PRESS OF AUSTRALIA PTY LIMITED trading as THE CANBERRA TIMES

[2014] ACTSC 8 (7 February 2014)

NEGLIGENCE – breach of duty – standard of care – plaintiff injured by internal fire door on second defendant’s premises – where second defendant had actual knowledge of risk – whether the second defendant was negligent in failing to replace internal fire door with a fire door with a glass insert – building compliant with relevant standards at all times

DAMAGES – personal injury – assessment of damages – double compensation – settlement between plaintiff and first defendant – no apportionment of settlement between incidents – whether plaintiff has discharged onus to negative double compensation

DAMAGES – personal injury – whether disability caused by pre-existing rotator cuff pathology, earlier incident or events the subject of claim for damages

Civil Law (Wrongs) Act 2002 (ACT) ss 41, 42, 43, 44, 45, 168

Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420
Australian Safeway Stores v Zaluzna (1987) 162 CLR 479
Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301
Baxter v Obacelo Pty Ltd (2001) 205 CLR 635
Caltex Tanker Co (Aust) Pty Ltd v Kerr [1999] NSWCA 115
Harris v Commissioner for Social Housing (2013) 8 ACTLR 98
Jones v Bartlett (2000) 205 CLR 166
McLaurin v Federal Commissioner of Taxation (1961) 104 CLR 381
Neindorf v Junkovic (2005) 80 ALJR 341
Phillis v Daly (1988) 15 NSWLR 65
SAS Trustee Corporation v Budd [2005] NSWCA 366
Shaw v Thomas (2010) NSWCA 169
Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574
Vairy v Wyong Shire Council (2005) 223 CLR 422
Watts v Rake (1960) 108 CLR 158
Waverley Council v Ferreira [2005] Aust Torts Reports 81-818

No. SC 457 of 2011

Judge: Master Mossop
Supreme Court of the ACT

Date: 7 February 2014

IN THE SUPREME COURT OF THE )
) No. SC 457 of 2011
AUSTRALIAN CAPITAL TERRITORY )

BETWEEN:DRAGO BROZINIC
Plaintiff

AND:ISS FACILITY SERVICES AUSTRALIA LIMITED
First Defendant

AND:THE FEDERAL CAPITAL PRESS OF AUSTRALIA PTY LIMITED trading as THE CANBERRA TIMES
Second Defendant

ORDER

Judge:  Master Mossop
Date:  7 February 2014
Place:  Canberra

THE COURT ORDERS THAT:

Judgment be entered for the second defendant.
The plaintiff is to pay the second defendant’s costs.
Order 2 does not take effect if either party notifies my associate by email within seven days of the date of these orders that it wishes to be heard in relation to costs.

Introduction

The plaintiff was employed by ISS Facility Services Australia Limited, the first defendant. He was a cleaning supervisor. His formal title was Regional Manager Client Services – ACT. One aspect of his duties was to deliver cleaning supplies to the premises where company cleaners worked. On 8 April 2010 the plaintiff was delivering cleaning supplies to the premises of the second defendant, The Federal Capital Press of Australia Pty Limited in Fyshwick. When entering the building the plaintiff was struck by a door which was being opened by an employee of the second defendant who was attempting to leave the building. The plaintiff alleges that the second defendant was negligent in that it had not replaced the fire door which struck the plaintiff with a fire door that had a window through which persons approaching the door might be viewed. The plaintiff also brought proceedings against the first defendant in relation to injuries alleged to have been suffered as a result of the accident on 8 April 2010 as well as an earlier incident on 26 March 2010. Those proceedings settled on terms which involved a payment to the plaintiff. There was no apportionment of at least part of the compensation received as part of that settlement between the 26 March incident and the 8 April incident.

There is limited dispute as to the facts. However there are a number of significant issues which arise in relation to the plaintiff’s claim. First, whether or not the second defendant was negligent in failing to replace the fire door. Second, the extent to which the plaintiff’s present condition is attributable to the 8 April incident described above as opposed to the pre-existing condition of his rotator cuff and the aggravation of that condition on 26 March 2010. Third, whether the plaintiff has already been compensated for the effects of the incident on 8 April 2010 by reason of the settlement between the plaintiff and the first defendant which related to both the 26 March and 8 April incidents.

Before turning to these issues it is necessary to set out the facts.

Facts

The plaintiff was born in 1950 and was 60 years of age in March and April 2010 and 63 at the time of trial.

His job involved supervising approximately 200 cleaners who worked at 36 different premises. As part of his duties the plaintiff attended those premises and delivered items such as detergent, polish, toilet paper and garbage bags. He would usually leave those items in the cleaners’ storeroom in the relevant premises. He carried stores of those items from job to job in his Mitsubishi Outlander vehicle. He was also responsible for dealing with complaints from the clients or employees of the business and undertook inspections of premises in order to check on the quality of cleaning work that was being carried out.

On 26 March 2010, when visiting premises located on Dairy Road in Fyshwick, the plaintiff was reaching into the back of his car to grab a bundle of 48 rolls of toilet paper when he felt pain in his right shoulder. He described the pain that he felt as a “burning snapping pain”. The pain occurred as he was reaching out and before he had actually lifted the toilet paper. He managed to complete his work that day, which was a Friday, but reported the incident the following Monday.

Notwithstanding his shoulder pain he did not take any time off work after the incident of 26 March 2010.

He saw a physiotherapist on 29 March 2010 who conducted an examination. The physiotherapist recorded that his shoulder had been “bad and painful”. The examination demonstrated that there were significant differences between active and passive ranges of movement in his right arm, consistent with a shoulder injury. For abduction the difference was 20 degrees active movement versus 100 degrees passive. For flexion the difference was 80 degrees active movement versus 100 degrees passive. The impression of his condition that the physiotherapist recorded was that the plaintiff had a supraspinatus tendon tear.

On 30 March 2010, the plaintiff attended his general practitioner, Dr Kennealy. Dr Kennealy’s notes record that he had suffered immediate pain in his right shoulder, that he had a painful arc and a very tender supraspinatus tendon in his right shoulder. The same day he completed a workers’ compensation injury notification form. He was referred by Dr Kennealy to see a sports medicine specialist, Dr Oon. Dr Oon saw him on 7 April 2010. His plan was to get an MR arthrogram of the right shoulder and he wrote a short letter reporting this to Dr Kennealy. However, the day after seeing Dr Oon and before the arthrogram could be carried out the plaintiff suffered a second injury.

One of the businesses where the first defendant undertook cleaning on a contract basis was the premises of the second defendant, the publisher of the Canberra Times. Those premises are located on a large site at the corner of Newcastle Street and Pirie Street in Fyshwick. The plaintiff was attending those premises in order to deliver garbage bags and cleaning products to the cleaners’ store inside one of the buildings on the site.

There were a number of buildings on the second defendant’s site. The particular building that the plaintiff entered was located at the northern end of the site. The plaintiff parked his vehicle in an area next to the building. Near where he parked was an external door which could be accessed by way of a covered walkway formed by the awning of the building. In order to get into the building that way it was necessary to pass through two doors. Those two doors were on either side of the bottom of a stairwell. Both doors were fire doors. They were solid doors and had no glass in them. Thus, in order to get into the building, the plaintiff needed to pass through the external door, walk across a few metres of concrete at the base of the stairs and open a second door immediately opposite the first. The doors were doors that he had been through on many occasions. He had seen people using the doors to go to work as well as coming and going for coffee or a smoke.

The plaintiff made two trips with the cleaning materials which he was delivering. On the first trip he carried two 15 litre drums, one in each hand. He left those drums just inside the external door on the concrete next to the wall. He then returned to his vehicle and got a box of garbage bags and another 15 litre container. The box of garbage bags was approximately 60 centimetres by 60 centimetres and weighed approximately two kilograms. He took those items back to the building and left the drum next to the drums that he had earlier delivered. He kept the box of garbage bags resting on his left forearm and went to open the inner door immediately adjacent to the bottom of the stairs. He reached out to grasp the handle but before he could put his right hand on the handle the door opened towards him and he was struck on the upper arm just below the right shoulder by the opening door. He staggered back and turned around to the left and the left side of his body came into contact with the wall which had been on his right. He described the pain that he felt at that time as so great that he thought he was going to faint.

The speed at which the door was opened was the subject of conflicting evidence. The plaintiff did not specifically describe the speed at which the door was being opened. However he described extreme pain as a result of being struck. He also described suffering bruising on his arm consistent with a significant blow to the outer upper side of his arm. That evidence was corroborated by his son. On the other hand, Yvonne Tobin the employee of the second defendant who opened the door said that the door was impossible to push hard and that she was opening the door “Slow. Snail-snail slow.” I understood her evidence about it being a heavy door as relating to the fact that there was a door closer on the door, the force of which needed to be pushed against in order to open the door. Notwithstanding her description of the door opening as being slow, I am satisfied in the light of the bruising suffered by the plaintiff that the door must have struck him at more than “snail slow” speed and with enough force to cause bruising of his upper arm. The fact of the injury and the fact that the opening door struck the plaintiff’s arm near his shoulder indicates that he must have been positioned close to the closed fire door at the time it was opened into him.

Immediately after the accident, the plaintiff was assisted by Ms Tobin, who had opened the door. Ms Tobin arranged for him to sit down inside the building and have a glass of water. Barbara Gough, the classified sales manager with the second defendant, had an office just inside the relevant door. She also assisted the plaintiff. She got up from her desk and heard the plaintiff “wailing”. She or Ms Tobin arranged for the first defendant to be notified of the accident. At least one other employee of the first defendant came and picked the plaintiff up from the Canberra Times, took him back to the first defendant’s office in Fyshwick and then to the Canberra Hospital.

At the Canberra Hospital the plaintiff was initially seen by a physiotherapist and an x-ray taken. He was then seen by the emergency department medical officer. The records from the hospital recorded that he had right shoulder pain after being struck by a heavy swinging door. It recorded that he suffered immediate pain in the anterorlateral and posterior shoulder as well as paraethesia of the fourth and fifth right fingers. The emergency department medical officer indicated that there were no breaks or dislocation shown on the x-ray that was taken. The plaintiff’s arm was put in a sling and he was given analgesics. He was given an anti-inflammatory, ketorolac, and Panadeine Forte.

The next day he attended his general practitioner, Dr Kennealy, who recorded that as a result of the accident there was an “immediate worsening of pain [in the] right shoulder”. The plaintiff was prescribed Panadeine Forte and certified as unfit for work up to and including 19 April 2010. On the fourth day after the accident, 12 April 2010 the plaintiff completed a Workers Compensation Claim Form in relation to this accident.

As a result of the accident the plaintiff developed a bruise in the middle outer side of his upper right arm. This lasted for a couple of weeks.

The MR arthrogram of his right shoulder which had been arranged prior to the 8 April incident was undertaken on 21 April 2010. The MR arthrogram showed an extensive full thickness tear of the supraspinatus tendon with considerable retraction and associated atrophy of the supraspinatus muscle. It disclosed marked infraspinatus and subscapularis tendinopathy and advanced changes within the acromioclavicular joint. It also disclosed a type I SLAP tear (a type of tear of the labrum).

The plaintiff was off work from 8 April until 19 April 2010. On 23 April he attended his general practitioner. He was recorded as “coping okay with work again” but given a doctor’s certificate recording restrictions on lifting more than 3 kg, repetitive lifting or driving anything other than an automatic car. He was referred by Dr Kennealy to see Dr Katherine Gordiev, an orthopaedic surgeon.

He also saw Dr Oon on 13 May 2010. With the benefit of the MR arthrogram Dr Oon diagnosed a large rotator cuff tear namely a tear of the supraspinatus tendon with tendinosis of other rotator cuff muscles. He referred the plaintiff to Dr Gordiev as he thought he needed surgery. He noted that the plaintiff had plans to travel in mid June. The plaintiff received physiotherapy on numerous occasions after that.

At his visit to Dr Kennealy on 24 May 2010 he was prescribed Endone and permitted to continue to work with significant restrictions.

The plaintiff saw Dr Gordiev on 16 June 2010. She took a detailed history from him, conducted an examination and viewed the MR arthrogram. She also gave him a subacromial injection of cortisone and local anaesthetic. In her reporting letter she said:

The MR arthrogram of the shoulder shows an extensive full thickness tear of the supraspinatus with retraction and marked infraspinatus and subscapularis tendinopathy.

It is likely that many of these changes were present at the time of the incidents described. However Drago’s shoulder’s rotator cuff pathology was obviously very well compensated due to the fact that he has kept fit over a long period and it is not unusual for patients with such problems to not be aware of the pathology in the rotator cuff. It is highly likely that the injuries described have caused further injury to the rotator cuff which has led to this traumatic deterioration in Drago’s shoulder function.

He saw Dr Kennealy the next day who recorded that the plaintiff was “coping well with current duties”.

Dr Gordiev saw him again on 22 June 2010 and recorded that he had some slight benefit from the cortisone injections but this had worn off. She had a long discussion with him about the likelihood that it would not be possible to repair the rotator cuff and that he may not be able to work above shoulder height with force or in a repetitive manner for the rest of his working life.

On 23 June 2010 he left to travel overseas to China and then Croatia, returning on 25 August 2010. After his return he worked for two more days and then was operated upon by Dr Gordiev on 1 September 2010. The operation report indicated that Dr Gordiev found the following:

...articular surface changes on the humeral head and on the glenoid with articular cartilage thinning on the superior central and inferior aspects of the humeral head. There was also significant wear, particularly in the anterior and inferior aspects of the glenoid. There was significant labral fraying. The deep aspect of the retracted full thickness chronic tear of the supraspinatus was visible. The superior rolled edge of the subscapularis was visible. The long head of the biceps was still intact; it was retraced into the joint. Areas of fibrillation and fraying were visible and therefore a biceps tenotomy was performed arthroscopically with a view to biceps tenodesis

After the biceps tenotomy she performed a tenodesis to the bone.

In October 2010 Dr Kennealy recorded: “rehabilitation progressing much slower than expected” and that the plaintiff had admitted to low mood and depression. Dr Kennealy then prescribed anti-depressant medication for the plaintiff.

Dr Gordiev reviewed him on a number of occasions since then and has recorded that he continues to exhibit the features of a weak rotator cuff and cuff tear arthropathy. She has continued to pursue non-operative treatments before contemplating a reverse total shoulder replacement which would normally only be attempted after the age of 70.

In addition to seeing Dr Gordiev and Dr Kennealy, the plaintiff has received physiotherapy, seen a psychologist and other doctors in relation to management of his condition as well as seeing the doctors required for medico legal purposes.

Since 6 September 2010 the plaintiff has been certified as unfit for work by Dr Kennealy. The plaintiff has not worked in paid employment since the operation nor has he sought such employment. His employment with the first defendant was, however, only formally terminated in August 2013. He continues to suffer pain in his right shoulder and this pain significantly interferes with his sleep. He takes a variety of medications for pain and depression.

The plaintiff was clearly a valued employee of the first defendant. That might explain the reluctance of the first defendant to terminate his employment. He struck me as a man significantly affected by his shoulder condition whose life was dramatically altered from his pre-incident state. All of the medical evidence was consistent with very significant and painful condition in his right shoulder. Dr Silver, a doctor called by the defendant, accurately if not politely summarised the position when he said: “I’m very sympathetic with Mr Brozinic. His shoulder is buggered and not much can be done about it”.

Similarly, it is clear that he suffers depression as a consequence of his chronic shoulder pain. The uncontradicted evidence established that the plaintiff suffered from a depressive disorder secondary to his right shoulder injury and chronic pain. That brief diagnostic description fails to carry with it sufficient impression of the misery, frustration and hopelessness that the evidence discloses the plaintiff experiences as a consequence of his pain and disability. However it suffices for present purposes. He is likely to continue to suffer depression so long as his pain continues.

Was the second defendant negligent?

The plaintiff’s claim

In the statement of claim the particulars of negligence were provided at a high level of generality. One of the allegations of the second defendant’s negligence was the failure to take any or any practicable steps to protect the health, safety and welfare of the plaintiff. The failure to take practical steps which the plaintiff alleged was particularised in a letter dated 7 December 2012. The plaintiff particularised that the second defendant was negligent in failing to provide a sign on the door stating “open door with care”, failing to provide a vision panel in the fire door, failing to provide sufficient clearance between the base of the stairs and the doorway and failing to account for the high degree of force required to open the door. At trial the plaintiff’s claim was limited to the failure to provide a vision panel in the fire door. The plaintiff submitted that such a door could be purchased for around $750 and should have been substituted for the existing door following the making of a complaint in July 2009 to the second defendant’s occupational health and safety committee that dangerous collisions often occurred at the doors in question.

The July 2009 report

The second defendant maintained a system whereby employees were encouraged to report any safety concerns that they had. On 13 July 2009 an employee of the second defendant, Karleen Williams completed a “Safety Hazard/Accident Report” which provided under the heading “Risk Identified”:

AIR-LOCK AREA AT BOTTOM OF STAIRS BETWEEN ADVERTISING/CHRONICLE & BACK DOOR TO OUTSIDE DANGEROUS COLLISIONS OFTEN OCCUR BETWEEN PEOPLE COMING IN/GOING OUT/CLIMBING & ALIGHTING STAIRS.

Under the heading “Reason for Concern” the report provided:

WE OFTEN GET BUMPED & KNOCKED CARRYING ARMFULS OF PHOTOGRAPHIC GEAR. A COLLEAGUE HAS ALSO LOST A CUP OF COFFEE DURING ONE SUCH COLLISION (SUGGESTION:-“PEEPHOLE” GLASS HALF DOOR WINDOWS SUCH AS IN RESTAURANTS & HOSPITALS.

On the same document, in a section designed to record a recommendation by a manager on how to eliminate the hazard, appears some text in different handwriting which said: “Notice to staff about carry [sic] mugs of coffee downstairs via Newsletter cannot change door as it is a fire door”.

The evidence of Mr Cooke, an architect called by the defendant, establishes that as at 2009 fire doors with glass inserts were in fact available. There was evidence tendered by the plaintiff that in 2013 fire doors with glass inserts could be purchased for approximately $750. Although there was no evidence about their price in 2009, I am prepared to infer that the price was not significantly different from the current price.

The general manager of the second defendant, Mr Ken Nichols, was a member of the committee that considered the “Safety Hazard/Accident Report”. The Occupational Health & Safety Committee of the second defendant met in the boardroom at its Fyshwick premises. The report was considered at its meeting on 14 July 2009. Karleen Williams did not attend that meeting. Mr Nichols recalled that she was consulted in response to her report and did not press her factual claims with any vigour. His evidence in this regard was:

I have a recollection that someone spoke to her about it. And my memory is that I think that even she sort of said, “Well, you know”- my memory is that she didn’t really push that it was happening all the time. She broke down a bit. But, you know, this is three years ago, or whatever it is four years ago, three years ago.

At the meeting of the committee, Barrie Murphy, the manager of the printing press, chaired the meeting and was principally involved in the discussion. Mr Murphy was responsible for the mechanical side of the business which involved very substantial printing presses. He was unavailable to give evidence in these proceedings.

Mr Nichols gave evidence that at the meeting Mr Murphy said that he had looked into a matter like this and the problem was that it was not possible to put glass in those doors because they were fire doors. The minutes record:

Hazard Identification Reports:
...
3. Air lock area at bottom of advertising stairs - collisions, coffee spills. Noted this door is a fire door and therefore a glass half door is not an option. Also noted that this door had been changed around due to wind tunnel in that area. Staff to be reminded that cups of coffee are not to be carried up and down stairwells.

Mr Nichols said that the committee would continue to monitor any similar matter if it came up again. There is no record of any formal resolution or agreement to that effect at the meeting however I accept Mr Nichols’ evidence that the committee would consider any future complaint or incident in the light of the existence of the July 2009 report. He said “it’s like a lot of these [things], you look at it, you see what you can do and you monitor if it is a continuing problem or was it a one off and you take the best possible response in the light of that information” There was no other complaint or report of any issue with the relevant doors until the incident involving the plaintiff.

How frequent were incidents?

The evidence made it clear that incidents of any significance arising out of the use of the fire doors were extremely rare. The fire door was used by between 80 and 100 people to access the premises each day. In addition to entering and leaving the premises, people would routinely go in and out of those doors on other occasions such as when leaving for or returning from lunch or for the purposes of smoking outside. Both parties submitted that a figure of 320 usages per day was an appropriate figure in the light of the evidence, and I accept that that figure is correct.

There was no documentary evidence of any complaint about or incident involving the fire doors between the opening of the building in 1987 and the July 2009 report.

At the time of trial Mr Nichols had been working at the Canberra Times for 12 years and general manager for about eight years. That means that at the time of the incident he had been working there for seven and a half years and had been general manager for three and a half years. He had no knowledge of any dangerous collisions in relation to the door up until 14 July 2009. The 14 July 2009 complaint was the only complaint that he ever remembered about that particular door or any door.

Yvonne Tobin used the door at least three days a week between November 2007 and April 2010. In that period she was not involved in any incident. She would quite often open the door to discover a person on the other side of it but that was not the cause of any incident.

Barbara Gough who had worked in the building since it opened had never had any issues going in and out of the door. Her evidence was that while it was a busy door she never had any difficulty herself and in the period 1999 until August 2013 she was the manager sitting in closest proximity to that door and she never heard of anyone (apart from the plaintiff) having an issue or an accident in that door. If she saw someone going through the door holding a cup of coffee she would chastise them because she was aware of the risks that such conduct involved as a result of an incident unrelated to the doors in question.

Consistent with this oral evidence, the records of the second defendant that were in evidence going back to 2004 contain no record of any other incident with or complaint in relation to the door.

In the light of this evidence, I am not satisfied that the statement in the Safety Hazard/Accident Report that “dangerous collisions often occur” is in fact correct. Rather, while the door was a busy one, and occasionally there would have been some awkwardness between users going in opposite directions, because of the familiarity of the users with the door and the taking of reasonable care by users of the door, the potential hazard was effectively managed by those using the door.

Did the door comply with relevant codes and standards?

The experts agreed that the design and operation of the door, being the internal door, complied with relevant building regulations and the Australian Standards governing the construction of fire resistant door sets in 1986. Further, the fire door complied with all relevant Building Codes and Australian Standards at the time of the incident. Mr Cooke prepared a report dated 2 August 2011 and a supplementary report dated 18 December 2012. In his first report he said:

At the time of construction and at the time of the incident, the design and operation of the subject door and the exit door complied with the relevant building regulations and the Australian Standard governing the construction of fire-resistant doorsets.

Dr Cubitt, an engineer called by the plaintiff had expressed the opinion that the door currently did not comply with Australian standard AS 1851-2005 because it required too great a force to open it. However, in expressing that opinion he had failed to take into account the force applied by the door closer which was required to be excluded for the purposes of assessing compliance with the standard. Further, at the time of construction AS 1428 did not require compliance with force requirements in order to meet the Standard. Therefore the position was as stated by Mr Cooke in the report quoted above.

Statutory provisions to be applied

The obligations of an occupier are set out in s 168 of the Civil Law (Wrongs) Act 2002. As I indicated in Harris v Commissioner for Social Housing (2013) 8 ACTLR 98 at [144]-[146] it is not clear what useful consequence the legislature was attempting to achieve when enacting s 168. Although the section makes it clear that it replaces the common law rules about the standard of care that an occupier of premises must show to people entering on the premises: s 168(4), the test under s 168 is, in substance, the same as the common law although the factors in s 168(2) groups together a list of factors to be considered.

Although the legislature’s intention as to the relationship between the tests in s 42 and s 168(1) and in s 43(2) and s 168(2) is not clear (and worthy of some legislative consideration), I proceed on the basis that the provisions of chapter 4 of the Civil Law (Wrongs) Act need to be applied, in addition to s 168, in determining whether or not the second defendant breached its duty of care: s 41. Therefore ss 42, 43 and 44 are relevant to assessing whether or not there has been a breach of the second defendant’s duty of care and the test of causation in s 45 must be applied.

Consideration

Notwithstanding the second defendant’s submission to the contrary, I am satisfied that s 43(1)(a) of the Civil Law (Wrongs) Act is satisfied in that the risk of a person being harmed by an opening door was a risk which was foreseeable in the sense of being a risk which the second defendant knew or ought to have known. In my view, the risk of a fire door being opened in circumstances where a person on the other side of that door is struck by the door is an obvious risk which any building owner would reasonably be aware of. In the present case, where the risk had been specifically drawn to the attention of the Occupational Health and Safety Committee which included the general manager of the second defendant, it is clear that the risk is one of which the second defendant actually knew.

Similarly, I do not accept the second defendant’s submission that the plaintiff has failed to establish for the purposes of s 43(1)(b) that “the risk was not insignificant”. That phrase derives from paragraph 7.15 of the Final Report of the Review of the Law of Negligence published in September 2002 (“the Ipp Report”). That report made clear that the phrase “not insignificant” was intended to articulate a test that was somewhere between “not far-fetched and fanciful” (see Wyong Shire Council v Shirt (1980) 146 CLR 40 at 48 per Mason J) and a test such as “a substantial risk”. The test was intended to be lower than “significant”. The New South Wales Court of Appeal has said that the test is more demanding than the “not far-fetched or fanciful” test but not very much more demanding: Shaw v Thomas (2010) NSWCA 169 at [44].

Notwithstanding that the defendant has pointed to the evidence about how rarely incidents involving the doors actually occurred, I am satisfied that the plaintiff has established that the risk is one which is “not insignificant”. As I have indicated above, there is always a risk associated with opening solid doors which cannot be seen through. That risk is increased where the door is frequently used. That it is a risk that might not materialise as a consequence of the familiarity of users with the door and the caution with which they deal with such an obvious risk does not mean that the risk is an insignificant one.

In my view the critical issue is that arising from s 43(1)(c), which requires an assessment of whether a reasonable person in the second defendant’s position would have taken the precaution that the plaintiff asserts it should have. That is, in substance, what is required in s 168(1). In making that assessment it is necessary to have regard to the factors set out in s 43(2) and s 168(2).

Before specifically addressing the matters outlined in the Act, it is necessary to point out two matters of approach. First, the assessment of whether or not a reasonable person in the defendant’s position would have taken particular precautions to address a foreseeable risk of harm is not one to be undertaken in hindsight but must be answered prospectively: Vairy v Wyong Shire Council (2005) 223 CLR 422 at 449, 461-462; Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420 at 438.

Second, in assessing what is reasonable, regard must be had to be fact that buildings inevitably contain hazards which increase the risk of injury to persons upon the premises. There is no such thing as absolute safety. The common use and occupation of buildings inevitably involves the risk of injury but particularly in cases where those risks are obvious, ordinary people manage them as part of ordinary life. The fact that a risk materialises and may have significant consequences for an individual is relevant to the question of the reasonableness of the response to the risk but must not divert the Court from the process of assessing what a reasonable person in the defendant’s position would have done. That inevitably involves an assessment of the standards reasonably expected in today’s community and, as a consequence, the conclusions reached by courts have changed over time: Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 at 308-9; Jones v Bartlett (2000) 205 CLR 166 at 195-196.

Statements as to how to deal with possible dangers in buildings have, in recent times, been made in the context of residential premises but, in my view, the comments are equally applicable to a commercial office building such as that in the present case. In Jones v Bartlett (2000) 205 CLR 166 at [21]-[25] Gleeson CJ said:

For most of this century, the common law in Australia was taken to be as stated by the House of Lords in Cavalier v Pope [[1906] AC 428]. That was a case about a lease of a dilapidated house. The tenant's wife was injured when she fell through the floor. Lord Macnaghten [[1906] AC 428 at 430] referred to a statement made in Robbins v Jones [(1963) 15 CB(NS) 221 at 240 [143 ER 768 at 776]] in 1863 that "there is no law against letting a tumble-down house". In Northern Sandblasting Pty Ltd v Harris [(1997) 188 CLR 313], this Court decided that the common law in Australia is different. (How different was not made completely clear). That was a case in which principles were stated in relation to "defects". The premises in that case were undoubtedly defective. The electrical wiring had been left in a highly dangerous condition as the result of the negligence of an electrical contractor.
In the present case, we are not concerned with a dwelling house that was dilapidated or tumble-down, or that contained negligently installed and dangerous electrical wiring. There was nothing about the premises that alerted, or should have alerted, the owners to any unusual danger. The premises were constructed in accordance with the standards prevailing at the time, and, so far as appears from the evidence, were adequately maintained.
There is no such thing as absolute safety. All residential premises contain hazards to their occupants and to visitors. Most dwelling houses could be made safer, if safety were the only consideration. The fact that a house could be made safer does not mean it is dangerous or defective. Safety standards imposed by legislation or regulation recognise a need to balance safety with other factors, including cost, convenience, aesthetics and practicality. The standards in force at the time of the lease reflect this. They did not require thicker or tougher glass to be put into the door that caused the injury unless, for some reason, the glass had to be replaced. That, it is true, is merely the way the standards were framed, and it does not pre-empt the common law. But it reflects common sense.
[footnotes inserted into text]

His Honour also referred to the judgment of Mahoney JA in Phillis v Daly (1988) 15 NSWLR 65 where his Honour discussed the significance, post Australian Safeway Stores v Zaluzna (1987) 162 CLR 479, of dangers that were obvious as opposed to hidden or unusual. There his Honour said (at 74):

There are dangers on any premises. A room may have a desk or a table. There is a danger that, if I fall, I will hit my head on it and my skull will be fractured. If the desk or table were not there, I would suffer little or no harm. And the danger is obvious: people do slip and fall. And the injury may be serious. But the obvious foreseeability of such an injury and its seriousness does not involve that, if a person falls and hits his head on a table, there must have been a breach of duty by the occupier of the room. And this notwithstanding that people may live without tables and that tables may be easily removed.

Before Australian Safeway, it was necessary, even in the case of an invitee, that the danger be an “unusual danger”: Indermaur v Dames (at 288); see Black v City of South Melbourne (1964) 38 ALJR 309 and Hampton Court Ltd v Crooks (1957) 97 CLR 367. This, it has been suggested, is because an occupier “may assume that ordinary reasonable people know and appreciate usual or common perils and need not therefore be warned or otherwise protected against them”: Fleming The Law of Torts 7th ed (1987) at 433. I do not think that it was the purpose of Australian Safeway to depart from that ought to make an occupier liable for all “usual or common perils” incident to his premises. At the least, the fact that the instant danger is such is a relevant factor in assessing what the defendant should have done.

Gleeson CJ made similar comments in Neindorf v Junkovic (2005) 80 ALJR 341 at [7]-[9]. The comments were referred to in Shaw v Thomas [2010] NSWCA 169 where Macfarlan JA (with whom Beazley and Tobias JJA agreed) said: “It is a regrettable but inevitable fact of life that dangers still exist in homes, and other places, despite reasonable care having been taken by those in control of such places.”

I turn now to consider the factors mandated by s 43 and s 168 of the Act.

The probability that the harm would happen if precautions were not taken (s 43(2)(a)) or the likelihood of the probable injury (s 168(2)(a)): As indicated above, I have accepted the evidence of those witnesses that gave oral evidence that during the period when the door was operating there were no other incidents involving the door of which they were aware and that such incidents were in fact rare. While the physical layout of the two doors and the fire stairs generates a clear possibility of adverse interactions, and the volume of traffic would tend to increase the chance of those interactions occurring, the familiarity of the users of the doors and the obviousness of the risk both tend to reduce the probability of those adverse interactions occurring and, if they did, the probability of harm arising.

The likely seriousness of the harm (s 43(2)(b)) or the gravity and likelihood of the probable injury (s 168(2)(a)): In the event of an adverse interaction between persons coming and going through the doors the most likely harm that would arise would be minor. Most probable would be surprise, awkwardness or a trivial bump from an opening door. However the spectrum of possible harm extended not only to the more significant bump from the opening of a door such as that suffered by the plaintiff but even to catastrophic but very unlikely injuries resulting from a person falling over and striking their head on concrete or metal.

The burden of taking precautions to avoid the risk of harm (s 43(2)(c)) or the burden of removing the danger compared to the risk of the danger (s 168(2)(g)): The evidence discloses that a fire door with a glass insert was available at reasonable cost in 2009. The burden of replacement of the door that caused the injury involves the cost of the replacement door as well as the cost of having it installed. That additional installation cost was not the subject of any evidence but the parties appeared to approach the matter on the basis that it was modest. I proceed on the basis that it was no more than $1500 and probably less than that. Although there was no evidence about anywhere else on the second defendant’s property where an equivalent situation would arise which would also need to be considered when considering the burden of taking precautions, clearly if the inner door that collided with the plaintiff was to be replaced, the outer fire door in the same location with either the same or a similar volume of traffic would also need to be replaced in the same fashion. Therefore the total financial burden of taking the precaution asserted by the plaintiff was in the order of $3000, corresponding to the cost of two doors and $1500 for installation of both. There would likely be some administrative effort on the second defendant’s part that was required in order to arrange for the replacement of the doors but this was not significant for an organisation such as the second defendant.

The circumstances of the entry onto the premises (s 168(2)(b)): The plaintiff was clearly an authorised entrant into the building, entering as he did using an access key which was available to him as a result of the cleaning contract between the first defendant and the second defendant.

The nature of the premises (s 168(2)(c)): The premises were commercial office premises to which it would be expected that safe entry and egress would be provided to staff and contractors.

The knowledge of the occupier about people being on the premises (s 168(2)(d)): The second defendant was aware of the presence of people being on the premises. Those people were the staff of the second defendant and, at least, cleaning contractors who had access to the premises.

The age of the person entering the premises (s 168(2)(e)): The plaintiff was aged 60 years old. He had no particular age related condition which would elevate the responsibilities of the second defendant.

The ability of the person entering the premises to appreciate the danger (s 168(2)(f)): So far as there was a danger it was an obvious one. It was one which due to its obviousness, the familiarity of the plaintiff with the door and his specific knowledge how the door was used he was in a position to fully appreciate.

The social utility of the activity creating the risk of harm (s 43(2)(d)): This provision does not give the Court the opportunity to reflect broadly on the social utility of the Canberra Times. The provision is derived from the Ipp Report: see footnote 1 page 103. It is a factor which permits weighing in the balance the fact that some activities are of such social worth that it should be accepted that more accommodation should be given to a higher level of risk taking. The example referred to in Waverley Council v Ferreira [2005] Aust Torts Reports 81-818 at [50] is that of an ambulance speeding an injured person to hospital. However it is apt to also operate in a negative sense where the complete absence of social utility may affect a court’s balancing under s 43. In the present case the factor is not relevant one way or the other.

Neither the matters referred to in s 43(2) or the matters listed in s 168(2) are exhaustive of the matters relevant to considering whether the standard in s 43(1) or the duty in s 168(1) has been met. In the present case I consider it relevant to note:

(a) that the second defendant had a system whereby if there were further reports of incidents or dangers in relation to the doors, the response to the risk could be reviewed; and

(b) the building both when constructed and through to the time of the accident complied with the relevant requirements of the Building Code and Australian Standards.

In my view it is not determinative of the outcome of this case that, on the findings that I have made, the advice given by Barrie Murphy as to the availability of fire doors with glass inserts, and hence the basis upon which the second defendant made its decision, was incorrect. That is because, in my view, a reasonable person in the second defendant’s position would not have replaced the fire door which collided with the plaintiff prior to the accident in 2010.

The Occupational Health and Safety Committee appears to have proceeded on the basis that it accepted that the risk existed but that in assessing what to do about the risk, it had regard to its own experience of the situation. While it may have acted upon an opinion as to the availability of fire doors with the glass inserts that was no longer up to date, the outcome of its deliberations was not unreasonable. It was faced with a claim of a hazard which, while being obvious, had not, so far as the evidence discloses, materialised in a way that caused harm of any significance in the 22 years the building had been occupied. The outcome of the committee process did not preclude it being revisited if more evidence of the materialisation of the risk appeared and that is consistent with the way in which Mr Nichols said it would be dealt with. A reasonable person in the position of the defendant would not in those circumstances, even if they understood that glass insert doors were available, have necessarily proceeded to immediate replacement of the existing doors. A reasonable person could readily have decided to proceed with the lesser measures of notifying staff in the manner that the second defendant did.

The strongest factual aspect of the case for the plaintiff is the volume of traffic through the doors. Non-transparent doors such as fire doors or toilet doors are obvious hazards which ordinary people entering upon commercial premises must deal with every day. However the volume of movement through the two doors in question was higher than would be expected for a door simply functioning as a fire door rather than a routine entry and exit point for a building. Plainly for high volume doors an inability to see another person approaching the door from the other side is a factor which increases the risk of an accident occurring. It is not likely that an architect designing a building today, would design such a routine entry and exit point in the manner that the relevant area was designed. However, those matters are not sufficient in this case to justify a conclusion that the result reached by the second defendant in the present case was not reasonable. The failure to replace the fire door was consistent with the evidence about the rarity of problems and the decision of the committee permitted a reconsideration of the issue if further evidence or complaints of problems arose. With the benefit of hindsight, it is clearly unfortunate that further action was not taken. However, looking at the matter from the point of view of the second defendant at the time, an incremental approach to addressing the problem was not an unreasonable response.

As a consequence, the plaintiff’s claim against the second defendant fails because it has not shown that the second defendant breached its duty in the manner that the plaintiff alleged.

Contingent assessment of damages

In case I am wrong in my conclusion as to breach of duty, I will make an assessment of damages. Had there been a breach of duty in failing to install a fire door with a glass panel then, notwithstanding the submissions of the second defendant to the contrary, I would have been satisfied that causation in the sense required by s 45 of the Civil Law (Wrongs) Act had been established. That is because, it is likely that had there been a glass panel in the door either the plaintiff or Ms Tobin would have seen the other person on the other side of the door and taken steps to avoid the collision between the opening door and the plaintiff.

The three critical issues in relation to the assessment of damages are:

(a) the extent of disability caused by the plaintiff’s pre-existing pathology;

(b) whether the plaintiff was guilty of contributory negligence;

(c) whether the plaintiff has already been fully compensated for his loss as a consequence of the settlement with the first defendant.

The effect of the accident

The plaintiff’s position was that the incident on 8 April 2010 caused either a new frank injury to the right shoulder being a new supraspinatus tendon tear or an extension to that tear or alternatively that it caused an aggravation or exacerbation of the pre-existing condition in his right shoulder. The plaintiff submits that if there was an aggravation of the rotator cuff tear then the plaintiff is entitled to recover damages for the extra consequences arising from the second injury. The plaintiff cites Caltex Tanker Co (Aust) Pty Ltd v Kerr [1999] NSWCA 115 in support of that contention.

The defendant accepts that the plaintiff suffered a soft tissue injury in the incident on 8 April 2010. However the defendant submitted that the incident on 8 April made no material contribution whatsoever to the plaintiff’s rotator cuff pathology.

The principle in Caltex Tanker Co is not directly applicable in the present case. The principle adopted in that case applied where a defendant was sued for damage arising from a first injury and there was also a second injury from which damage arose. The Court said, inter alia, that where the further injury results from a subsequent accident that would have occurred even if the first accident had not and the damage is greater because of the aggravation of the earlier injury then the defendant is only liable for the additional damage resulting from the aggravation of the earlier injury: Caltex Tanker Co at [29]-[30]; Luntz, Assessment of Damages for Personal Injury and Death, 4^th ed (2002) at [2.5.2]. However the present case does not relate to the position of a defendant responsible for a first injury. Rather the issue is the responsibility of a defendant sued in relation to a second injury where that injury aggravated the damage caused by a first injury for which that defendant was not responsible. The court must simply assess how much worse off the plaintiff is as a result of the second injury.

Medical evidence – contemporaneous

The relevant content of the contemporaneous medical records are set out above. The case is an unusual one in that not only are there medical records identifying the plaintiff’s condition immediately prior to the 8 April 2010 incident but there is the MR arthrogram of 21 April 2010 which provides detailed objective imaging information taken only 12 days after the incident.

Although Dr Gordiev was not called to give oral evidence, the plaintiff placed particular reliance upon the passage in her report quoted at [21] above.

Medical evidence – medico legal

Dr Peter Burgess, an orthopaedic surgeon, reported to the plaintiff’s solicitors on 12 May 2011. He was of the opinion that the plaintiff suffered from “a capsular injury to his right shoulder which does not appear to have responded very well to the surgical intervention”. He considered that the prognosis was guarded and that he suffered a permanent disability of a 30% permanent loss of efficient use of his right arm in accordance with the AMA Guides to the Evaluation of Permanent Impairment. In that report, he did not attempt any assessment of the respective contributions of the incidents on 26 March and 8 April. He reported again to the plaintiff’s solicitors on 14 May 2013. The updated report is consistent with the earlier one, assessing the level of impairment at 35% and indicating “the real possibility of a need for shoulder arthroplasty in the future”. Finally a report dated 4 December 2013 was prepared in response to a letter from the plaintiff’s solicitors. That letter was not in evidence. However the doctor appears to have been asked for an apportionment of responsibility for the plaintiff’s current condition between various causes. The substance of his report is as follows:

I feel it perfectly reasonable to say, given this man’s history, that 20% of his current right shoulder problem could be put down to constitutionally based attritional changes which showed up in the x-rays taken as a result of his first accident and which revealed a level of “wear and tear” that had pre-dated the accident but which was causing him no trouble at all.
With regard to attribution to the two accidents, I feel that the first accident caused 30% of his current trouble. He managed to recover sufficiently from the effects of this accident to return to work.
I feel that the accident of 8 April, 2010, caused 50% of his current problem which resulted in him requiring surgery and an inability to return to work and a somewhat daunting prognosis which includes probable arthroplasty.

Dr Burgess was not required for cross-examination. Notwithstanding that he does point to some factors which influence his assessment, his report does not disclose any reasoning or methodology which would lead him to be able to apportion percentages to the three different causes that he identifies in his report.

Dr Raymond Wallace reported to the first defendant’s workers' compensation insurer on 12 April 2011. His report was relied upon by the second defendant and he gave oral evidence and was cross-examined. In his report dated 12 April 2011 he said:

Mr Brozinic was suffering from significant degenerative pathology at the right shoulder prior to his initial work injury in March 2010.
He underwent MR Arthrogram of the right shoulder on 21 April 2010 which showed evidence of pre-existing full thickness degenerative supraspinatus tendon tear and degenerative tendinopathy involving the subscapularis and infraspinatus tendons.
There was advanced osteoarthritis within the acromio-clavicular joint.
The fact that this investigation showed evidence of supraspinatus tendon retraction and atrophy indicates that the supraspinatus tendon tear had existed for some months prior to his initial work injury in March 2010.
The mechanism of injury Mr Brozinic describes at the time of his work incident in April 2010 of being struck at the anterior aspect of his right shoulder by a closing door is not consistent with being the cause of significant right shoulder pathology.

In evidence in chief, Dr Wallace expanded on this statement and explained why the mechanism of injury was not consistent with being the cause of significant right shoulder pathology. He said:

Yes, well two things. One is the mechanism of injury. So he explained to me that the door struck him at the anterior front from his shoulder which for that to happen means that his arm must be at or near his side, not in a raised position for it to actually hit the shoulder. And that the shoulder joint is a very mobile joint. It’s got a large cuff of muscle around it and to do it damage by a direct blow is difficult and usually only seen in high injury trauma such as car accident or a fall from a height. The second component was on the evidence of the MR scan two weeks later, there was no evidence of acute pathology. So the combination for me of that mechanism of injury being a blow to the front of the joint and then an MR two weeks later showing no acute pathology suggests to me at worst that was a soft tissue injury which was minor.

In cross-examination he explained that the MR arthrogram showed no evidence of there having been an acute injury in April. He went further and said that the injury was certainly not two weeks old. The features of that MR arthrogram which led him to that conclusion were that there was no fluid or haemorrhage and that there were features of a chronic tear namely retraction of the tendon and atrophy of the supraspinatus muscle. There was no evidence of an acute event such as a ligament injury, articular cartilage damage or bone oedema. He said that if there had been “a big whack” to the humeral head by the door you would see bone oedema which would be very obvious on an MR arthrogram.

It was suggested to him that the operation report of Dr Gordiev from September 2010 reflected some injury consistent with trauma. Dr Wallace disagreed with that. The doctor considered that what was reported by Dr Gordiev was consistent with chronic rather than acute degeneration of the shoulder. His evidence was that the wear and tear in the glenohumeral joint was entirely consistent with the plaintiff’s chronic rotator cuff pathology. He said that the plaintiff had significant chronic rotator cuff degenerative pathology and that was the cause of his current symptoms. He had a temporary aggravation by a soft tissue injury which was now resolved and his current right shoulder problems were due entirely to his pre-existing rotator cuff pathology which was significant and getting worse. He said the plaintiff would suffer his current symptoms whether or not the event on 8 April 2010 had occurred.

Dr Greggory Burrow, an orthopaedic surgeon, reported to the solicitors for the second defendant on 10 November 2013. He did not examine the plaintiff but instead prepared his report on the basis of assumptions which were given to him and with the benefit of the various medical records and reports. In relation to the cause of the plaintiff’s current condition he said:

it is my opinion then, on the balance of probabilities Mr Brozinic had significant albeit asymptomatic rotator cuff disease prior to any of the injuries, either March or April. After the initial injury on 26 March he had significant symptoms and physical signs for Dr Oon to recommend an MR scan.
The subsequent injury where he bashed his shoulder against the wall when the fire door was opened on him did not result in any significant further tearing of the shoulder. It caused an aggravation which at worst could be described as temporary.
There was significant need for an MR scan as a result of the index injury of 26/03/2010. It was that injury which aggravated the pre-existent albeit asymptomatic cuff disease.

The statement that he “bashed his shoulder against the wall” is obviously a mistake and inconsistent with the assumptions that the doctor was asked to make. It is not a matter of significance.

Dr Burrow pointed to the clinical notes of a physiotherapist from 29 March 2010 and of Dr Oon from 7 April 2010 referring to limits on flexion, abduction and external rotation as indicating “a large to massive cuff tear was pre-existent, effecting [sic] all 4 major components of the cuff, was present prior to the Fire door incident”. He considered that the fire door incident was a temporary aggravation of the pre-existing massive cuff pathology which was coincidental with and did not substantially contribute to the pathology, symptoms, disability or the requirement for surgery. Like Dr Wallace, he considered that the retraction and atrophy of the muscles were indicative of the condition being a chronic one as those features would not be present with an acute tear.

In oral evidence he confirmed his opinion that the incident of 8 April did not lead to a material contribution to the ultimate presentation of the plaintiff.

In cross-examination he was asked whether anything in Dr Gordiev’s operation report indicated whether or not a tear occurred on 26 March 2010. The doctor said the MR arthrogram report and the chronic retracted irreparable nature of the cuff tear pointed to a condition which was very likely present before 26 March. He accepted that the incident on 26 March “could have been a further tear of the rotator cuff”. It was then put to him that the incident on 8 April “could have been a further tear of the rotator cuff” and he said “it’s certainly possible. It’s probably unlikely.” In that regard he pointed to the absence of any clinical evidence in the MR scan that showed an acute injury. He thought that the bruising reported by the plaintiff was not consistent with a rupture of the biceps or rotator cuff muscles. Those ruptures would lead to internal bruises which would be picked up on a MR arthogram but not the sort of bruising that the plaintiff suffered. He explained that the reported limits on range of movement, particularly the limits described by the physiotherapist on 29 March 2010 made it difficult to imagine that the plaintiff could perform normal medium labour duties.

Dr John Silver, an occupational physician, examined the plaintiff on 14 November 2012 at the request of the second defendant’s solicitors. In evidence were two reports dated 20 November 2012 and 7 November 2013. The report dated 7 November 2013 was substantially the same as the earlier report but corrected some factual errors in the earlier report. In the latter report Dr Silver says that “it is reasonable to suggest that the contribution to Mr Brozinic’s ongoing shoulder problems from the 08/04/2010 incident has been minimal. It is suggested that 10% of the ongoing problems be considered to be secondary to that incident.” In oral evidence he said:

I felt that I couldn’t say that it was not possible that there was some contribution of the incident on 8 April having made a contribution, but I feel that if there was a contribution that it would be minimal and if I was to use the balance of probabilities as a criterion rather than a possibility, I would say on the balance of probabilities there would be no contribution of that incident on 8 April contributing to the pathology and in the same line of reasoning, I would say that the incident on 8 April didn’t materially contribute to the pathology that was well and truly established before that incident.

Dr Silver repeated that evidence in his answers in cross-examination. He said that on the basis of the objective evidence provided by Dr Oon’s assessment and the MR arthrogram: “I think that the incident on 8 April is unlikely to have caused any substantial extra damage. That is my view because of the mechanism of the injury. It was direct trauma to the outer arm. It wasn’t to the rotator cuff.” He thought that the paraesthesia reported at the hospital could be attributable to bruising of the outer aspect of the plaintiff’s arm.

Consideration

The evidence in the plaintiff’s favour is the report of Dr Gordiev and the report of Dr Burgess. Dr Gordiev does not specifically address the precise issue which arises for determination. Dr Burgess’ opinion as to attribution does not disclose the medical methodology for the specific figures that he arrives at. Although Dr Burgess has referred to factual matters which might indicate that underlying pathology or the two incidents might be more or less significant, the process of percentage apportionment is not one which has an articulated medical rationale and hence is an opinion to which I give little weight.

The evidence of Dr Wallace and Dr Burrows on the other hand is based on the assessment of the significance of the objective medical information that was obtained immediately before and after the 8 April incident. I accept Dr Wallace’s and Dr Burrows’ evidence that the information available from the MR arthrogram is inconsistent with the plaintiff having suffered any acute injury to his rotator cuff on 8 April 2010. Further, their evidence was consistent with the incident on 26 March involving an aggravation of the chronic rotator cuff condition because that was the date when it first became symptomatic. While the plaintiff’s condition might have remained asymptomatic for a longer period than it did due to his good standard of fitness, it was rendered symptomatic by the incident on 26 March 2010. On 8 April 2010 the blow to the front of the upper arm was sufficient to cause bruising which lasted for two weeks. That reflects a significant injury but not, on the evidence, one to the rotator cuff. Therefore I accept Dr Wallace’s and Dr Burrows’ opinion that the current condition which arises out of underlying chronic rotator cuff pathology is not attributable to the 8 April incident. In my view, the rotator cuff, having been rendered symptomatic as a consequence of the 26 March incident, was going to remain so whether or not the 8 April incident had occurred.

However there remains the issue of what effect the incident on 8 April actually had. I accept the plaintiff’s evidence that there was an increase in pain as a consequence of the incident. The impact from the door was a significant one which caused pain separate to that attributable to the underlying rotator cuff pathology. There is an absence of evidence of any acute injury to the rotator cuff arising from the 8 April incident. There remains the possibility that although there was no acute impact upon the rotator cuff, that the symptoms experienced by the plaintiff in his shoulder were increased by a mechanism not clearly disclosed in the evidence. Because of the focus on the forensic contest over the major issue of whether or not there was acute damage to the rotator cuff caused during the accident on 8 April 2010 there was little exploration in the evidence of:

(a) the mechanism by which the previously asymptomatic pre-existing rotator cuff condition was rendered symptomatic by the incident on 26 March 2010; and

(b) whether and how a blow to the upper arm on 8 April 2010 might increase pain levels associated with a symptomatic rotator cuff condition in circumstances where no additional acute injury could be shown to have occurred.

In my view the position is that the pre-existing condition shown to exist by the MR arthrogram which had been rendered symptomatic by the incident on 26 April 2010, was of a type which would have affected the plaintiff in a disabling way in any event. The plaintiff has shown that he clearly suffered a short term soft tissue injury. His bruising continued for around two weeks. That was consistent with the period of two to three weeks that Dr Wallace considered the 8 April incident may have played a role in his symptoms. He may have suffered some temporary aggravation of the pain caused by his underlying rotator cuff pathology by a mechanism not clearly described in the evidence. However, the underlying condition in his rotator cuff was such that he still would have undergone the treatment that Dr Gordiev gave him in June 2010 and the surgery that she undertook in September 2010. Beyond the date of the surgery it is certainly not possible to find that the plaintiff’s condition would have been any different if the 8 April incident had not occurred. Therefore, while there is some uncertainty as to how long the additional symptoms attributable to the 8 April incident persisted, the effect of the 8 April incident can be assessed as extending no longer than five months following the incident and during that time being only partially responsible for the plaintiff’s disabilities. Therefore damages should be assessed for that limited period: Watts v Rake (1960) 108 CLR 158 at 165.

The medical certificates disclosed that the plaintiff was certified unfit for work by Dr Kennealy from 8 April to 19 April 2010. The plaintiff’s evidence that he was off work until 23 April, given in answer to a leading question, is inconsistent with the schedule of workers’ compensation payments in Exhibit 18 and the notes of Dr Kennealy which are more consistent with him having returned to work before that. I therefore find that he returned to work on 20 April 2010. On 23 April 2010 he was certified as fit for work with restricted duties and that situation continued until at least when he departed for overseas at the end of June. After 24 May 2010 he was prescribed Endone and took it in order to assist him to be able to cope with work.

General damages

As a result of my findings above the general damages attributable to the 8 April incident would be modest. Not only is his current condition not attributable to the 8 April incident but the psychiatric conditions from which he undoubtedly suffers are not secondary to the injuries suffered in that incident. During the period when the plaintiff did suffer additional damage as a result of the 8 April 2010 incident, the causally related damage was only part of the damage that he was suffering as he continued to suffer damage from the earlier incident which had rendered his shoulder condition symptomatic. He did not suffer from diagnosed depression during that period and was only commenced on anti-depressant medication in October 2010. Had liability been established, I would have assessed general damages relating to the period from 8 April 2010 to 1 September 2010 at $15,000. I would have awarded interest on that amount.

Economic loss

Economic loss for the period from 8 April to 26 June would be limited because the plaintiff returned to work on 20 April 2010. Exhibit 17 shows that he was paid workers’ compensation for a period from 8 April 2010 to 19 April 2010 amounting to $3,961.12. This equates to his gross fortnightly salary at the time shown in Exhibit 1. No further payments were received until after his shoulder surgery because he remained working or on holiday during that period. In the period between April and June 2010 it has not been proven that he lost any other aspect of his salary package although there is a possible loss of a small amount of superannuation in the period he was in receipt of workers’ compensation. Therefore the only loss would be the Fox v Wood component and possibly some superannuation. I would have heard the parties on the quantum of these aspects of damages and on other components of damages (Past out of pocket expenses, Griffiths v Kerkemeyer) in the light of my findings.

Contributory negligence

Contributory negligence was pleaded and I would have reduced the overall damages awarded to the plaintiff by 50% of account of contributory negligence. The danger to the plaintiff was an obvious one with which he must have been familiar. Doors get opened. The plaintiff was aware of the way in which the door was used and hence the prospect of someone who he could not see opening the door. In approaching close to the door in the manner that he did, he exposed himself to a risk of injury which a reasonable person in his position would have taken care to avoid.

Double compensation

The plaintiff settled his claim against the first defendant. In his statement of claim he had sought damages from the first defendant in relation to the injuries he alleged he sustained on 26 March 2010 and 8 April 2010. Therefore in relation to the injuries that the plaintiff suffered on 8 April 2010, the first and second defendants were alleged to be concurrent tortfeasors. They were appropriately classified as several or independent tortfeasors rather than joint tortfeasors because it was their separate actions which combined to produce the damage: Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574 at 580-581; Baxter v Obacelo Pty Ltd (2001) 205 CLR 635 at 646. However the precise classification is not significant for present purposes (although it once might have been: see Baxter at 647ff).

The plaintiff accepts that credit must be given for the amount of compensation received from the first defendant. However given that the first defendant was potentially liable for the consequences of both the 26 March and 8 April incidents and the second defendant could only be liable as a result of the 8 April incident, it is not clear what credit should be given for the payment made by the first defendant when assessing damages payable by the second defendant.

The evidence in relation to the terms of settlement was as follows. Exhibit 16 is a deed of release dated 30 August 2013 which discloses the terms of settlement. The recitals to the deed refer to the injuries alleged in schedule 1 to the deed. Those are described as “All injuries, whether they be physically or psychologically sustained by the [plaintiff] during the course of his employment with the [first defendant].”

Paragraph 2 of the deed provides:

In consideration of the [first defendant] paying to the [plaintiff] the amount of $175,000 plus costs agreed in the sum of $45,000 (Payment), the [plaintiff] releases the [first defendant] and provides the indemnity set out in this deed.

In paragraph 3 the plaintiff gives the first defendant a release and it is specified that the plaintiff may retain compensation paid under that Workers Compensation Act1951 (ACT). An “Application for registration of Agreement for compensation” filed in the Magistrates Court became Exhibit 17. That document gave effect to the terms of the deed. It made clear that the rights being commuted related to all personal injuries suffered by the plaintiff arising out of or in the course of employment but made specific reference to the “injury to right shoulder” and “injury to head, neck, back, shoulders, both arms, both legs, both hands, both feet, binaural hearing loss, and any emotional or psychological reaction arising out of his employment with the [first defendant]”. A list of payments from the first defendant’s insurer to the plaintiff became Exhibit 18. That showed the plaintiff had received in total the sum of $449,810.99. That amount included the payments of weekly compensation, medical expenses and the additional payment of compensation and costs referred to in the deed.

In SAS Trustee Corporation v Budd [2005] NSWCA 366 a police officer had obtained compensation under the Victims Compensation Act1987. He then made an application for a “gratuity” under the Police Regulation (Superannuation) Act1906. There was no evidence as to the reasons for the victims’ compensation award. However, the award covered the loss stemming from the injury for which compensation under the 1906 Act was claimed. It was possible, because of the terms of the particular statutory provisions, that the victims’ compensation award was for injuries other than the injuries which were compensable under the 1906 Act. It was in this context that the New South Wales Court of Appeal considered who bore the onus to prove what the earlier award was compensation for and hence whether or not double compensation was avoided by the award under the 1906 Act. Mason P (with whom the other members of the Court of Appeal agreed) said (at [33] and [37]):

The rule against double compensation may be invoked by one or more defendants. If it can be shown that the plaintiff/claimant has already received recompense in any form in respect of the loss for which compensation is claimed against the defendant invoking the rule, then the plaintiff’s loss requiring compensation from that defendant is regarded as discharged pro tanto. To award compensation with respect to that loss against that defendant would be to permit double recovery by the plaintiff in respect of a loss no longer calling to be compensated.
...
A defendant who invokes the rule against double compensation must establish that the plaintiff has already been compensated with respect to the relevant loss. Sometimes all that can be shown is that the plaintiff has received money from a third party without it being known what the payment was for. It might, for example, relate to legal costs of proceedings that were withdrawn. There may be uncertainty as to the nature of the receipt. In such circumstances, the defendant will have failed to make good the defence.

His Honour continued at [49]-[50]:
There is, however, an answer in principle, in my opinion. There is a line of cases dealing with the rule against double compensation, holding that where the person invoking the rule (usually the defendant) establishes that money was paid to the other party in circumstances capable of attracting the rule (eg with respect to a concurrent claim), it is for the recipient to show that the money was not received by way of compensation for the loss (Townsend v Stone Toms & Partners (1984) 27 BLR 26 at 41, 51, 56 (Eng CA), Boncristiano at 89-90).
I incline to the view that these cases involve an evidentiary onus being cast upon the party having access to the relevant information rather than a free-standing principle forming part of the rule against double compensation. Be that as it may, the respondent was party to the proceedings before Judge Hosking, unlike the present appellant. The respondent called no evidence (and did not explain his inability to do so) with reference to identifying the issues raised for determination before Judge Hosking and/or addressed in his reasons for judgment.

Applied to the present case that approach would mean that once the second defendant had shown that money was paid to the plaintiff in circumstances capable of attracting the rule against double compensation because the claim related to the same incident as was alleged to give rise to liability of the first defendant, then the onus was on the plaintiff to show that the money was not received by way of compensation for the loss. The submissions of the plaintiff did not specifically address this issue but proceeded on the basis that the plaintiff had received some compensation for the loss and that the issue of double compensation could be addressed by the Court apportioning the total settlement with the first defendant between the two incidents and then determining whether or not the compensation received in relation to the second incident from the first defendant was less than the full compensation for his loss resulting from that incident.

Having regard to the manner in which I have assessed damages the only way that the plaintiff would be entitled to further damages would be if, in substance, the whole of the compensation already received was attributable to the 26 March incident.

I am not satisfied that I should engage in the apportionment exercise which I am invited to undertake by the plaintiff. This case is analogous to Budd in that just as the reasons for the award of victims’ compensation in Budd were missing, here there is nothing to indicate how at least part of the compensation was apportioned. The workers’ compensation amounts paid were paid for the items identified in Exhibit 18 but there is not apportionment of the additional payment of $175,000. In Budd, the New South Wales Court of Appeal did not decide for itself how the victim’s compensation payment should have been apportioned in the light of the material before it. Similarly, in the present case I do not think it is appropriate to dissect the undifferentiated payment of $175,000 between the two incidents. That exercise may or may not reflect what actually occurred in the settlement. Although obvious care must be taken in importing statements made in one area of the law into another the position is similar to that considered in McLaurin v Federal Commissioner of Taxation (1961) 104 CLR 381 at 391 where the Court held that it was not possible to dissect a single payment of a mixed nature when the compromise pursuant to which it was paid treated the payment as a single undissected amount of damages. While in this case the plaintiff has led evidence that would enable me to make a determination of what should have been the damages attributable to the 26 March incident and hence by subtraction the amount paid by the first defendant in relation to the 8 April incident, it is impossible to determine whether that, in fact, was what occurred.

If the damages to which the plaintiff was entitled to arising out of the 8 April 2010 incident were large then it might be necessary to resolve the broader issues of principle. However because of the quantum of my assessment of damages and the fact that damages are being considered on a contingent basis, it is sufficient to dispose of this case to find that the plaintiff has not discharged the evidentiary onus to prove that compensation has not been received from the first defendant for the damages suffered as a consequence of the 8 April incident.

Orders

In the light of my reasons above the appropriate orders are:

1.   Judgment be entered for the second defendant.
2.   The plaintiff is to pay the second defendant’s costs.
3.   Order 2 does not take affect if either party notifies my associate by email within seven days of the date of these orders that it wishes to be heard in relation to costs.

I certify that the preceding one hundred and fifteen (115) numbered paragraphs are a true copy of the Reasons for Judgment herein of Master Mossop.
Associate:
Date: 7 February 2014

Counsel for the plaintiff:  F J Purnell SC, J R Sainty
Solicitors for the plaintiff:  Blumers Personal Injury Lawyers
Counsel for the defendant:  M H Best
Solicitors for the defendant:  McCabes Lawyers
Date of hearing:  9, 10, 11, 12 and 23 December 2013
Date of judgment:  7 February 2014

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